We were in hour ten of a multi-party mediation convened to settle a million dollar copyright dispute among three Los Angeles garmentos. Counsel for the target defendant was demonstrating righteous indignation for my benefit. He was packing his trial bag, fuming about the other parties’ bad faith and the waste of time the mediation had been.

I don’t highly recommend this negotiation tactic but I see it a lot.

“We’re leaving,” counsel shouted, gesturing that his client should follow.

I too have a temper. I don’t know a litigator who doesn’t. But I tuck it down deep when I’m playing the role of “neutral.”

“I don’t think that’s a good idea,” I responded in the low, slow, patient tone of voice you use with over-excited children and frightened animals.

“And why do you think that?” he snarled.

“Because the first thing your client said to me was that failure here today was not an option. He’s broke. He’s nearing retirement. He’s beaten. He can’t sleep at night. He needs me to get the best deal possible and then he desperately needs to take a vacation.”

The client, who hadn’t moved a muscle since this exchange began heaved an audible sigh of relief and said to me “thank you so much. I’ve been saying that for two years and no one has ever acknowledged it before.”

This is where legally astute resolution of litigation by executives and managers comes in.

Continue reading here

This just in from one of my colleagues at ADR Services, Inc., Michael P. Carbone. Good stuff and an excellent mediator for commercial real estate and construction dispute litigation.

A mistake that lawyers sometimes make is failing to ask for what they want.  If they do want an evaluation they can ask for it when they hire the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose.  They can be used independently or they can be combined with mediation.
 
I was once hired to give a neutral evaluation in a commercial real estate case.  The parties told me at the outset that while they were interested in exploring settlement they were really interested in my opinion on the merits.  So we conducted a mediation that included a neutral evaluation.  Not only did this meet their needs, the evaluation was given in a confidential setting and could not be used as evidence if they did not settle.
 
The point is that both parties wanted the process to be evaluative.  It was not a situation where one party was expecting the mediator to be evaluative and the other party wanted the mediator to refrain from doing so.
 
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!

I'm dashing this post off between mediations. Here are statements I will not have to hear you make if you are a lean, mean negotiation machine.

"If she'd asked for a reduction in her commercial lease rate in light of the downturn in the economy, we would have negotiated a decrease in her yearly rent."

"If they'd come to me to discuss the matter before they hired lawyers, we could have resolved this ourselves. Now that I've spent $___________ in attorneys' fees, I don't see anyway of coming to a resolution short of trial."

"I don't respond well to ultimatums. Tell them we'll see them in Court."

(requiring me to reframe the "ultimatum" as an effort to suss out their bottom line and to say, for the ten thousandth time, "if you're moving in the direction of one another, there's still a possibility that your true bottom lines overlap so let's keep negotiating")

"I'll be frank with you, my true bottom line is . . . . . "

No no! Please do not tell the mediator your "true" bottom line. If you're telling her the truth (something she does not assume) then she will drive the negotiation toward your bottom line. Any mediator will. They can't help it. Any number that enters the negotiation environment in a circumstance of uncertainty about value will serve as an anchor, strongly influencing the outcome in every exchange of offers and counter-offers.

On the other hand, if you think you can fool her with a false bottom line, you are a brown belt and may proceed.

"They will never agree to my terms."

If the mediator says she doesn't agree with you, listen up! She's holding confidential information from the other side. Just as importantly, only you know what your actual terms are, so no one can predict the future of any negotiation because no one knows what their bargaining partners' true bottom lines are. Don't get ahead of yourself. Be patient. As long as you're moving in the direction of one another, a deal is more likely than not.

"They're negotiating in bad faith."

There's no such thing as "bad faith negotiation."

Are they lying to you about a material term of the potential agreement or facts that drive your decision? If so, put it in the deal memo as a condition precedent to your obligation.

"He's scum (a liar, evil, contemptible, etc.)."

That may be true. It should not, however, keep you from entering into a deal that reduces your economic risk to an acceptable level at a cost that makes business sense to you.

"O.K., but they have to pay your full fee."

I've just helped the parties settle a nine-figure case with five plaintiffs and twenty defendants and you want them to pay my $5,000 fee. You're quibbling over $2,500 after paying $34 million to settle this case? You're trying to save face, which is fine. But is it worth making your opponent lose face and potentially blowing up the deal you've just spent fifteen hours and tens of thousands of dollars negotiating?

I thought not.

More later. Off to mediate.

Should I Work for Free?.webarchive

 From today's Wall Street Journal Law Blog (an Angels fan):

 every time we hear the name “McCourt” these days, our heart leaps a little. Who cares if the ridiculous divorce travails of Jamie and Frank end up wrecking the team, after all? The worse the Dodgers fare, the more likely it is that fans will shift their allegiances to the superior team that plays 30 miles down I-5.

In any event, according to this AP report, the McCourts are finally softening, it seems, and taking the whole debacle into mediation.

A person familiar with the case told the AP late Tuesday that the two sides would meet in a downtown Los Angeles courtroom Friday. Click here for the take from Josh Fisher’s Dodger Divorce blog.

Can we afford not to learn and teach these skills?  Cross-posted at She Negotiates.

Dear Fabulous Women Neutrals of Los Angeles:

One last time!! before the door closes on the opportunity to have your picture in the WLALA Tribute book and to share two tables with your fellow neutrals at the WLALA annual Installation Dinner and Gala. 

I have three more places at the table and on that ad.  I need your check for $175 and a .jpg by Friday to put you in it!  Please, let's show WLALA how eager we are to cross-refer business.

This is a particularly good year to join us as we begin the first WLALA ADR initiative in its nearly 100 year history.

ONE HUNDRED YEARS! of women lawyers - way past time to reach and firmly occupy the higher reaches of the profession.  We've been graduating from the nation's law schools in nearly equal numbers with men for more than 20 years.  My own U.C. law school class (King Hall, '80) was 50% women thirty years ago.

The ADR pipeline is full of competent -- indeed glorious -- women.  Yet the statistics at the top remain grim.

Chopped Liver?

Why is your ADR practice not everything that Tony Piazza's or Eric Green's or even Steve Cerveris' is?  Research shows that both men and women have negative implicit attitudes toward women in leadership and authority positions.  The good news is that women are slightly less pre-disposed than are men to picture a man in a suit when they're looking for access to money and power.  I've had at least half a dozen women commercial litigators look straight at me and say "I don't know any women mediators."

Huh????

Followed by, "well their names are never on the lists [circulated in my firm]."

Women, with their slightly reduced inability to "see" women in authority positions, are our foot in the door. And the new WLALA ADR Committee is our opportunity to open that door wide.

As a member of the CPR-led Joint Task Force on Diversity, I have heard the verdict of JAMS and the AAA.  "The market has spoken.  Commercial lawyers just don't hire women and minorities."

What????

We're advocates, for goodness sakes.  When we come into town we have to register our skills of persuasion with local law enforcement authorities.  We're change agents, opinion makers, powerful holders of the keys to the kingdom. 

And the market has spoken? 

We make the market!

This year's ADR Committee is dedicated to closing the gaping void between men and women neutrals.  We're not going to ask for special treatment, picket the LASC's ADR office, pass new laws or burn our ADR certificates, Super Lawyer plaques, Ivy League diplomas, or our bras (not at this age!). 

We're going to market like no one has ever marketed before and we're going to do so as a group so that we don't each hesitate, as we women tend to do, to promote ourselves and our services.

2010 and 2011 will be the years in which top women will refer to other top women.  2010 and 2011 will be the years in which we close the income gap not only between men and women neutrals but between men and women lawyers (its 40% at the top).  2010 and 2011 will be the years in which we make a market younger women lawyers will be entering in the next decade and the one after that -- one in which they'll flourish after they grow weary of fighting over interrogatory objections and e-discovery.

How?

Marketing.  Proctor and Gamble does  not say, "well, the market doesn't want a new improved laundry detergent."  P&G asks "how?" not "can we?"  And it certainly never says "we give up, the market has spoken."

We're putting our first stake in the ground on September 16 at the  WLALA Gala.  There's no event more important for women neutrals to attend this year. 

Our current attendees will appear in two full-page ads in the Tribute Book and two color flyers to be distributed at the dinner. 

To date those women are Eleanor Barr, Joan Kessler, Lynne Bassis, Katherine Edwards, Laurel Kaufer, Linda Klibanow, Denise Madigan, Stephanie Maloney, Deborah Rothman, Jan Frankel Schau, Gretchen Taylor, Caroline Vincent, Diane Wayne, Linda Bulmash, Lisa Gates (my She Negotiates business partner), Kathy Balin, and Erica Bristol. 

We need three more women neutrals to fill table two.  If you want to sit at another table, ask a woman litigator to change places with you while whispering "cross-refer" in her ear.  The key is that you'll be there to network.  You'll show your support to WLALA by showing up and WLALA women (among the most entrepreneurial in the Bar) will see your beautiful face and panel affiliation or business name in the  Tribute Book while enduring the inevitably tedious speeches at these events. 

Do you want to double your income by 2012?  If we've lasted this long in a profession that was solidly male when so many of us were in high school, we can close this gap by coming together and just doing it.

And if the $175 is too steep a price during these recessionary times or if you'll be out of town or otherwise engaged on the 16th of September, please let me know that you want to be a member of the new WLALA Committee by return email.

Our first event will be an afternoon on arbitration in October with CPR CEO Kathy Bryan and other powerful women attorneys, GC's and CEO's who arbitrate, either as advocates, as clients or as arbitrators.  The panel will be moderated by complex-commercial AAA arbitrator Deborah Rothman.

Shock me!  Let's fill Table Three!!

I look forward to hearing from you and to kicking the last pitiful shards out of that darn glass ceiling.

Best,

Vickie

Victoria Pynchon, Esq., Incoming Chair, WLALA ADR Committee
ADR Services, Inc. and She Negotiates Consulting and Training

If your intent is transformation, you can get there by reading the telephone directory. ~ Unknown

My primary job as a mediator, aside from learning the "case" and acquainting myself as deeply as possible with the parties' interests - is to "hold the space" of resolution.  That usually means that I begin the process by creating an atmosphere of hope that the matter can be resolved and by providing assurances that the mediation room is a safe environment in which to have candid conversations about the dispute without fear of ridicule or other emotional attacks. 

What I had done here was create an atmosphere of distrust and peril.  Even before one of the parties telephoned me, I was naturally beginning to feel remorseful.  The telephone conversation that did occur could not have inspired trust in a mediator who seemed more interested in her own inconvenience than the well-being of the parties.  Led to believe (despite my persisting doubts) that the parties were proceeding to mediation in a good faith effort to settle their antitrust litigation, I agreed to arrive at the appointed hour with the same intention. 

I awaken the next morning feeling pretty much the same way litigants do prior to a mediation.  They have outstanding conflict issues with one another - telephone calls not returned; suspicion generated by the games litigators play; harsh words exchanged between the parties; accusations lobbed by counsel across the bar to the sitting judge; and, the natural demonization that occurs when the parties stop talking to one another and put their disputes into the hands of attorneys. 

No matter how sophisticated the litigation and how able the counsel, at least half the people in the room would rather not see the other half now or ever.  No one likes conflict.  But if your mediator is unskilled at facilitating a group process in the presence of conflict -- even one she's created -- hire another mediator.  

I enter the meeting room all "morning in America."  Shake hands, make and receive introductions, sit down with the entire group in joint session, roll up my sleeves and get to work.  Everyone seems cheerful, unusually so.  They're friendly with one another and only slightly wary of me.  We carve out one of the issues that seems most amenable to resolution, stay in joint session and make progress on that issue before we eventually reconvene in separate caucuses.

At some point in the process, when everyone seems affable and we are sharing war stories while waiting for a counter, someone mentions the email.  This spirit of camaraderie among counsel and the parties, I'm led to believe, arises from my irritability.  They united, they say, against me.  I somewhat sheepishly acknowledge that my intention was not to create a common enemy.  I admit, however, that I'd awoken that morning hoping that, at a minimum, the parties would have come together in the spirit of resolution against a mediator who'd accused them of gamesmanship. 

Five hours after we begin, we have narrowed the issues, resolved significant differences in opinion and have whittled a $10 million dispute down to a $500,000 difference of opinion.  I leave confident that the parties will resolve that difference, either through direct negotiations or in a future mediation, with or without me.

There are takeaway lessons here - not the least of which is a reminder that we can resolve the conflict we create simply by showing up and being accountable for our part in it. 

The larger lesson about developing conflict-resilience will be the subject of the final post in this series tomorrow.

Spoiler alert:  this will ramble, so anyone who wants a quick shot of mediation or negotiation advice, do come back soon.

The Back Story

When I first dipped my big toe into mediation's waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings.  Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).

It didn't take me long to learn where the landmines were buried. And a lot of them surrounded the perimeter of the downtown Los Angeles Superior Court.  There's an mediation pro bono panel there where new mediators can first practice their new trade, learning the skills, picking up best practices, and, beginning to build a reputation for excellence among the litigation and trial bar.  This was all good and I was grateful for the opportunity to have cases referred to me to test my new-found mediation knowledge and growing skill-set.  Never mind that I was paid to practice my new legal trade as soon as I'd passed the Bar.  I understood that this was a kind of internship and I was happy for the opportunity to serve.

My new mentors, however, as well as pretty much everyone else I met, had some dire warnings about conflict between panel mediators and the Superior Court.  Conflict?!?  By May of 2004 (a month after I'd finished my first mediation class) I'd enrolled in the Master of Laws program at the Straus Institute for Dispute Resolution, not because I thought it would give me a necessary credential, but because I was on fire for this new field of study. 

How could there be simmering conflict in a community of conflict resolvers, I repeatedly asked, long before I realized (once again) that people chose their occupations at least in part to work on improving their ability to handle situations that baffle them.  Yes, we conflict resolvers were, like therapists, "wounded healers."  We had conflict issues!

The Problem

The problem that existed when I entered the mediation profession was this - the pro bono panel had been providing free mediation services to Los Angeles lawyers for years.  There are a set of understandable and complex reasons for the initial "decision" to ask L.A. citizens (panel members are not necessarily lawyers) to provide free mediation services on behalf of the Court to the organized bar. Those reasons, and the unresolved conflict that existed in 2004, are the same today as they were then - witness Jeff Kichaven's recent Daily Journal article excoriating the maintenance of this free service once again, this time on behalf of women and minorities.

Here's the intro to Jeff's article:

August 13, 2010 DIVERSITY IN MEDIATION:HERE'S HOW By Jeff Kichaven

I continue to bark at the moon.

Here's a piece I missed in April on real litigation filed over virtual property in Second Life.

Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.

Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.

Here's the thought this article triggers.  If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?

I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles.  A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday.  Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.

Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.

A criminal defense lawyer I know used to ask me "just exactly what is it that you 'litigators' do everyday anyway?'"

What we do, my friend, is discovery.  

Discovery. 

Saying that discovery is part of litigation practice is like talking about the wet part of the ocean.

How do you know when you're finally finished with legal practice?  When do the heavens open up and angels descend with the news that you've finally done enough and may now go and do that which you truly love? 

It's usually a discovery moment.

For one of my former law partners, it came on the heels of a five page meet and confer letter.  Single spaced.  When my friend's secretary came into her office with the written response, the expression on her face ranged between shock and amusement. 

"You're not really going to send this, are you?"

"Yes, I am.  Let me sign it."

"No no no no no no no.  I can't let you do this."

"Yes you can.  Let me sign it."

"Pleeeezzzzzzzzzzzzzzzzzz."

"Sign."

Here's the response that struck fear into the heart of an overworked legal secretary: 

Whatever.

And yes.  She sent it.

For those of you who have not yet reached the promised land of Discovery Whatever, I've got very very very good news for you.

The Discovery Referee Speaks!  And she is a Goddess.  Goddess Kathy Gallo to be exact.

Yesterday's post reminds us what we ought to know intuitively during our first deposition - the Court Reporter is the Goddess of the Deposition (my own stories of first encounters with the Sphinx of the Transcript are here)

Continue Reading

Mediator:  You cannot mediate in the manner the Straus Institute taught you to do.  You have to come to terms with that.

Galileo was ordered to stand trial on suspicion of heresy in 1633. The sentence of the Inquisition was in three essential parts:  Galileo was found "vehemently suspect of heresy," namely of having held the opinions that the Sun lies motionless at the centre of the universe, that the Earth is not at its centre and moves, and that one may hold and defend an opinion as probable after it has been declared contrary to Holy Scripture. He was required to "abjure, curse and detest" those opinions.^[102]

Continue Reading

Thanks to Yahoo Green's "how to help wildlife threatened by the oil spill."

I'm walking to my appointments today.  Because I can and because I can't get down to the Gulf to help out there.  Let's each do one small thing today.  And tomorrow.  Start a daily blog of "heal the Gulf" activities.  Tweet or post "things to do."  Call a friend or relative in the area and ask what you can do to help.  Observe a moment of silence for the BP workers killed in this disaster.  Say a prayer in honor of the wildlife most religions tell us to be responsible for.  Remember that the planet does not need us to survive.  It did quite well before us and will do quite well after us.  We need it. 

At its best, the negotiated resolution of conflict generates accountability among all of the stakeholders.  When we're accountable - when we take our part in it - the way in which we can transform our impotent outrage into productive action becomes instantaneously apparent. 

Continue Reading

This is, of course, the $64 million dollar question.  Or the $640 million dollar conundrum.  Or the $6.4 billion dollar SNAFU.

Abandon all hope . . . .

The answer:  make a checklist and follow it!

Atul Gawande's Checklist Manifesto - How to Get Things Right is not about ordinary lists - those "to do's" we never get around to; the recipe for gramma's extra fudgey brownies; or, even the T-minus rocket launch count-downs (forcing functions) which my friend the astral-orbital engineer has been holding his breath through this week (his T-minus rocket count aborted at six seconds last night).

I'm talking about communication check-lists of the sort used by our friends in the sky-scraper business - the ones that have achieved this jaw-dropping "annual avoidable failure rate": 

0.00002 percent.

What kind of check-list does that?  In the construction industry, it's a "submittal schedule" - a checklist that doesn't

specify construction tasks; it specif[ies] communication tasks.  For the way the project managers dealt with the unexpected and the uncertain was by making sure the experts spoke to one another - on X date regarding Y process.

The submittal schedule assumes that if you get the right people together to talk things over as a team, serious problems can be identified and averted.  It's that simple and it works as well for physicians dealing with routine but complex collisions between genetics and circumstance as it does for contractors and jet pilots. Checklists, it turns out, can solve problems like raising a child . . . . or resolving disputes. 

Can Gawande's "communication checklists" be good news for in-house counsel trying to prevent litigation? 

Yes they can.  And they already exist.  Dispute resolution techniques are scalable -- the procedure described can be used for fights over shared lockers equally well as conflicts over shared political boundaries.  Scalability means that the system for solving the small problem can also be used to solve the big one by "adding new functionality at minimal effort."

Here's the Peer Mediation Checklist used by the Western Justice Center for Middle Schoolers.  I've coached these young people and they are master dispute resolvers.  After a Peer Mediation Competition, you want to send these kids to the middle east.

The even better news for in-house counsel is the fact that you do not need a "mediator" to follow this list.  You do need enhancements, however, to take you from the fight over a shared school locker to the lawyer threatening to sue your company for defamation or products liability or antitrust violations or securities fraud. 

Enhancements tomorrow. 

The Middle School Checklist today.

STEP I: SETTING THE STAGE: INTRODUCTION AND GROUND RULES

Mediators: introduce themselves; explain the process of mediation and that it is voluntary; explain   that mediators are neutral; explain confidentiality; establish a safe and comfortable environment; and, get agreement on the following ground rules:

1. Don’t interrupt.
2. No name-calling or put-downs.
3. Agree to solve the problem.
4. Be honest.
5. Show respect.
6. Be willing to listen.

STEP II: DEFINING THE PROBLEM

Mediators: Ask who will talk first;  ask what happened; ask how he or she feels about what happened;  summarize each statement; and, give each party approximately equal time to talk.

STEP III: IDENTIFYING THE ISSUES

Mediators: Use active listening skills (repeating, summarizing, clarifying); create an agenda; focus on issues important to both parties; stay neutral; ask if any issues have been missed; and, identify areas of miscommunication or wrong assumptions.

STEP IV: FINDING SOLUTIONS

Mediators:  Address issues one at a time; brainstorm solutions; ask what each party would like the other to do differently in the future; ask what each party can do to resolve the dispute; and, ask what can be done differently if the problem occurs again.

STEP V: AGREEMENT AND CLOSING

Mediators: •    Write specific agreements for each issue outlining who will do what,
where, how and by what date; balance the agreement so both parties take responsibility for the solution; be sure the agreement is realistic for each party; be sure the agreement really addresses the issues; ask if any issues have been missed; ask parties to prevent rumors by telling people the dispute is resolved; and, thank the parties and congratulate them for their hard work.

Insight from the academics at Concurring Opinions' post on PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009. Post by  Tamara Relis. Image from Legal Blog Watch.

[P]laintiffs’ articulations of their litigation objectives rarely correlated with legal actors’ perceptions.

In fact, a regular and conspicuous occurrence was the failure to mention financial compensation as an objective at all unless probed (occurring in 65% of interviews).

Instead, what plaintiffs recurrently repeatedly was a lexicon of non-fiscal, extra-legal objectives for litigation. The issue of ‘principle’ was prominent for plaintiffs as revealed in the various objectives they passionately spoke about. ‘It’s not about the money’ was a recurrent theme throughout. Many of the comments concerned dignity and respect after the injury, inability to be heard, refusal to listen, dismissal and victim blaming.

Moreover, plaintiffs’ extra-legal objectives did not appear to be affected by the passage of time, as there were no marked disparities in the way plaintiffs spoke of why they sued and what they wanted from the civil justice system as between plaintiffs who had commenced litigation three to four months earlier (interviewed subsequent to court-mandatory mediations) and claimants who had been litigating for several years (interviewed after voluntary mediations of cases already on trial lists).

Here are the results from the question:  what are your aims in mediation?

The disparity in mediation aims of plaintiffs and plaintiff lawyers revealed important differences in what each planned for mediation in terms of how to resolve the same case.  Other than wanting settlement, the mediation objectives of plaintiffs and plaintiffs’ lawyers were diverse in all categories. For instance, though some plaintiff lawyers noted their clients wanted defendants to admit fault (37%), regardless of feasibility not a single one sought this at mediation. In comparison, virtually all plaintiffs (94%) sought fault admissions at mediation. Similarly, plaintiff lawyers never mentioned wanting to hear defendants’ explanations of the disputed incidents. Again this was something that most plaintiffs desired (71%). Finally, as compared with the bulk of claimants (88%) who sought apologies at mediation, only a minority (32%) of plaintiff lawyers did (though almost half remarked that apologies were important for their clients).

For more charts, data and analysis, see the incredibly useful post over at Concurring Opinions here.

When's the last time you enjoyed listening to an acceptance speech?  Never?  Check this out!  Jim Melamed of Mediate.com accepting an award at the Spring 2010 ABA Dispute Resolution Conference.

Remember mediator blah blah . . . . ?  New Zealand mediator and mediation/negotiation trainer Geoff Sharp's justly revered blog?  It still exists, along with an incredible treasure trove of helpful suggestions, insights, links, case studies, white papers, forms, shout-out's, call downs, criticisms and praise.  mediator blah blah has been shuttered and silent since Geoff "bowed out" in August of 2009, followed by the funereal wailings, rending of garments and heaping of ashes by those whose professional and personal lives were enriched every time Geoff put hand to keyboard.

Somewhere mediators and negotiators must have been saying "I do believe, I do believe, I do believe," or tapping their ruby shoes together.  Today, Tinker Bell recovers and Dorothy returns to Kansas. 

Geoff Sharp is baaacccckkkkkkkkkkkk and he's looking awfully good and modern walking toward you on his new web home with forms to deliver, process and case studies to share, articles to hand over, and YES INDEED, a new blog whose title m3 makes Geoff appear to be the only mediator in the English-speaking world who might actually recall how to solve a quadratic equation.

Welcome back Geoff!  We sorely and sincerely missed you!

p.s. kill that blog registration thing-a-ma-jiggy please.

Five years ago, after twenty-five years of high-stakes complex commercial litigation, I left legal practice to pursue a full-time ADR career.  At the time I left practice, these were the questions my teams and I were asking about the qualifications of mediators:

"Do we really want to hire an attorney mediator for this case?"

"Don't you think the client wants a Judge?"

The ADR profession has mostly passed that hurdle.  Though some litigators continue to say "my client needs to hear the bad news from a retired judge," most litigators understand that mediation is more about influence, deal making, subtle persuasion, specialty knowledge, "real life" experience, people skills, and raw intellectual speed.  

(why is the second edition of this book pink?)

I've been reading Women Don't Ask:  Negotiation and the Gender Divide by Babcock and Laschever in preparation to teach my month-long You Can Negotiate Anything course for women over at Lisa Gates' shop, Craving Balance. Wow!  It's like reading The Second Sex for the first time in college.  It explains so much.

Right now I'm going to remind my readers that well-behaved women rarely make history.

These are the conversations taking place at the highest levels when someone suggests my name as a mediator.

"Do we really want a woman mediating this case?"

"The client won't accept a woman mediator."

"This case doesn't have women's issues in it."

"If it was an employment case, a woman might be appropriate.  Those cases involve a lot of emotion. Women are good at that." (I'll say it again:  if you don't believe men are emotional about litigation, you don't understand that anger is an emotion)

Why are they even talking about my gender?  Why is it relevant?  They don't ask "do we really need a man to mediate this case?"  Except on those occasions when women's issues are involved.

How do I know this?

I've got the statistics from Babcock and Laschever; I've got the knowledge of how high-end litigators talk deeply embedded in my genetic code; and, I've had the following way too recent conversations.

Conversation Number One with the CEO of a Successful ADR Panel

Victoria:  "Let's put WLALA (Women Laywers of Los Angeles) on the list of organizations to send marketing materials to."

CEO:  (without a beat) "No.  Women don't refer."

Conversation Number Two with (male) Litigation Client in Separate Caucus

Victoria:   "Do you worry about jury blow back because your clients don't have green cards?"

Attorney:  "Not any more than I'd be worrying about what they'll think of the Lesbians in the next room."

Victoria:  "Ohhhhhhhh, they're Lesbians!"

Attorney:  "Why do you think we hired you?"

Conversation Numbers 3-10 with Separate Litigation Clients in Separate Caucus

Victoria (as an aside):  "You know I didn't practice personal injury law."

Male client:  "We know.  But we needed a woman for this case." (# 1:  injuries to the scalp at a hair salon; #s 2-5:  injuries arising from Botox treatments; #s 5-8:  women real estate brokers or agents and women clients; # 9:  medical malpractice:  wrongful cliterectomy; # 10:  medical malpractice:  wrongful vasectomy).

Conversation Number 11 with the Head of a Federal Settlement Panel

"The attorneys rarely choose the women on the panel." (and we're free!)

Conversation Number 12 with an ADR Insider

"So few attorneys were choosing African-American and women arbitrators that they stopped putting them on the panel."

A Baker's Dozen:  Conversation Number 13 with a Fellow Mediator (Male)

Mediator:  "Why don't you pursue the women's market?"

Victoria:  [speechless]

Although the answer to this question could have been:  "because women don't refer."

Get the picture?  Yes we see.

Why "Women Don't Ask:  Negotiation and the Gender Divide" makes this all make sense tomorrow.

These videos are Mediation 101 by one of the best commercial mediators in the greater Los Angeles area, Jeff Kichaven. For Jeff's more sophisticated materials, check out his articles here.

You know all the statistics about women's failure to negotiate their first salaries, their car purchases, their raises, their rates, and their price points.  If you don't, run over to Lisa Gates Craving Balance Blog right now for the straight skinny on women and negotiation (Why Women Must Negotiate Now than Ever Before).

What both Lisa and I are finding with our women clients (women are Lisa's market and my quarter-market) is that they're always doing stuff for free!!!!!!!!!!!!!!!  Let's not waste our time analyzing why we do this.  Let's just stop doing it.  

Run on over to the Commercial ADR Blog right now to see - yes - Lisa's and my free Twitter negotiation seminar where I take Lisa through a very short negotiation role play to help her negotiate a price for her services rather than simply saying "yes."

Unlike many others in the mediation field, I did not make the acquaintance of Richard Millen until recently.  In the past couple of years, we met for extended lunches and too many tall lattes (the lattes mine) between the old Wolfgang Puck's and the shuttered Virgin Record Store at Sunset Blvd. and Crescent Heights. 

Aside from the usual frustrations of mediators (insufficient respect; the difficulty of making a living; doctrinal disputes; and, the like) Richard suffered from age bias quite acutely.  It was not  any physical ailment or  diminishment in mental capacity that left Richard unoccupied after a robust and active professional life, it was the way in which he felt patronized, under-utilized and overlooked because others believed he was simply too old to do the job.

This is as untrue as any other stereotype or prejudice. As Richard noted in Transcendent Mediation, the facilitation of dispute resolution is a wisdom business in which the mediator, as the agent of change, disappears as the parties "do for themselves what they came for the mediator to do."  Richard explained:

Wise mediators . . . need to adopt is a different epistemology which changes the way we think about the conflict[,] thereby avoid[ing] “solutions that may seem quick and easy and expedient, but in fact are premature. . .resulting in a helping and a fixing instead of a non-hierarchical, common endeavor toward, if not to, a complete change of energy and reconciliation. 

“Our essential task is to allow all sides of an issue or pairs of opposites to exist in equal dignity and worth until their hidden unity is revealed.  By befriending and strengthening our capacity to hold paradox, we explore the realm of spiritual growth.  As we actualize all aspects of ourselves and weave them into an apparent symmetry, we become more skillful problem solvers, mediators, stewards of justice, and models of patience and mercy.   

Finally, there is [the instruction of] The Bhagavad Gita [that] we should neither be attached to the actor nor to the fruits of the action.  [W]hen a mediator is not so attached, the mediator is truly liberated to serve the parties in the mediation process by changing it to a positively oriented non-hierarchical, common endeavor in which the parties do for themselves what they came for the mediator to do.   

 

  

That is how to be and do as both a mediator and as a person in one’s life with []power[] of choice.  When as mediators we are in service to others, we are working on ourselves.  When we are personally working on ourselves, we are helping others.  It is the same.  We cannot tell the difference.  

 

It is as Rumi wrote,

I, you, he, she, we,

I, you, he, she, we.

In the garden of mystic lovers,

these are not true distinctions.

We've taken on racial and gender bias here recently.  In honor of Richard, let's also rethink our attitudes toward the aged or "elderly."  As geriatric nurse Alison Parsons explains in her article Attitudes to the elderly:

Ageism is "a process of systematic stereotyping of and discrimination against people because they are old... Ageism allows the younger generations to see older people as different from themselves, thus they subtly cease to identify with their elders as human beings." (Butler, 1975, cited in Matteson & McConnell, 1988: 482). Matteson and McConnell (1988: 482) point out that ageism decreases social status, and diminishes contact with younger people. It affects the health care of older people by influencing the attitudes of health care professionals and policy-makers towards the aggressiveness of diagnosis and treatment of the elderly. These attitudes are often based on erroneous assumptions regarding the utility of chronological age as a marker of function or ability to contribute to society. The tragedy of ageism is that it robs society of the fullest contributions of its older members, and it denies people's fulfilment of their potential as human beings throughout the life course.

 

Let's use the time of Richard's passing to take a look again at his writings and rethink our own attitudes not only toward age but toward what too many attorney-mediators dismiss as "touchy feely" practices - the ones that can take the opportunity offered by conflict to experience a moment of clarity, transformation and transcendence.

Mediation World Loses a Patriarch.

I understand from Richard's devoted friend, mediator Lee Jay Berman that Richard's family is having a private internment on Friday at Mt. Sinai but that he and mediator Laurel Kaufer will be planning a tribute soon, an event to honor Richard's life.

I don't think there's a mediator in town who didn't know and love Richard.  Not, you'll excuse the presumption, a "real" mediator at any rate.  Richard, for all his storied "soulfulness" did not suffer fools gladly or at all.  Nor did he cotton to separate caucus, position-based, distributive, single-issue, monetized shuttle mediation.  He considered most of us lawyers benighted fools and strove mightily to treat us with compassion rather than holding us in contempt.  That old cavalry soldier was never one to roast marshmallows over an open fire - he'd rather roast a few executives, attorneys, and "settlement conference" mediators instead. 

The last time I saw Richard - not that long ago - he was sitting by my side at a meeting of the State Bar's Standing Committee on ADR muttering angrily about the way we were all wasting our time on legal issues, debating for God's sake, when we'd been given the keys to the kingdom already, keys we'd so carelessly left at home tarnishing in junk drawers.

I don't know what else to say.  I hope people who knew and loved Richard will come here to share stories and say good-by and we love you without sentimentalizing him because he would have hated that.  I would think Richard would have raged raged against the dying of the light except for the fact that he was pretty fed up with the lot of us toward the end there.  So I'll end with a poem that doesn't cotton to people just up and vanishing.  By one of the great contemporary poets of the English language, W.S. Merwin.  

The Truth of Departure

With each journey it gets
worse
what kind of learning is that
when that is what we are born for

and harder and harder to find
what is hanging on
to what
all day it has been raining
and I have been writing letters
the pearl curtains
stroking the headlands
under immense dark clouds
the valley sighing with rain
everyone home and quiet

what will become of all these
things that I see
that are here and are me
and I am none of them
what will become
of the bench and the teapot
the pencils and the kerosene lamps
all the books all the writing
the green of the leaves
what becomes of the house
and the island
and the sound of your footstep

who knows it is here
who says it will stay
who says I will know it
who said it would be all right

Mediate.com - where I published my first article on mediation - was kind enough to publish an interview with me about my mediation career and blogging experience today.  Below an excerpt and at the link, more than you ever wanted to know about my legal and ADR career.

 [By mediating,]I regained everything I'd ever loved – people, story, drama, recovery – yet was allowed to retain the intellectual puzzle, strategic problem-solving job I'd enjoyed so much.  It was like the farmer says at the county fair – he uses “every part of the pig except the squeal.”  I too was now using every part of myself, including a squeal of delight.  The mediation career I've carved out for myself include negotiation training (so I get to teach, which I love); writing (blogging and the book that's grown out of it); and, helping people resolve business disputes burdened with justice issues in a way that is far more efficient, effective and creative than the litigation process affords.

If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you.  Diane is an extremely focused, disciplined and lively writer.  She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.

Diane describes her series, Fallacious Argument of the Month, as follows:

With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.

Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position.  Remember - you need a new number and a new reason to counter that new number.  If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so.  If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.

The Appeal to Authority

Argumentum ad Hominem (this one is so irritating it can create impasse where none previously existed)

The Red Herring

Confusing Cause and Effect

The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).

The False Analogy

The Straw Man

Diane adds one new fallacious argument every month.  I'll endeavor to keep up with her.  But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant.  That's her smiling face at top.  Visit her often! at The Mediation Channel.

The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.  

I can't say lawyers are a problem because:  (1) they're my job; and, (2) they're "my people" in the "tribal" sense.  A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know.  And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client  (citations omitted).  Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client].   In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach.  What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

1. don't "significantly affect the settlement rate" /2
2. don't significantly affect "the perceived fairness of the process";
3. don't significantly affect "the parties' level of satisfaction with the agreement; and,
4. don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article?  They indicated that attorneys adversely affected mediation outcomes in two ways:  (1)  they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue.  As to the remainder of the study's findings, I have this to say:

1. whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group.  Our "reality," especially as it appears in a group setting, is "co-created."  See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world."  Id. at 218.)
2. try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved. 
3. who is therefore responsible for the good and who responsible for the purportedly bad results of mediation?  That's easy:  EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all.  Remember your University philosophy class? Thesis, Antithesis, Synthesis.  We need people willing to state the negative to problem solve it positively.  The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command. 

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the  way, we can't credit credit nor bear all the responsibility for anything.  We are all capable.  We are all accountable.  And we all contribute something to the whole.

So we can stop pretending to be better than we are now.  We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do.  We're part of the team.  We're in it together.  Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

____________________

1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

I've posted two pieces on non-litigated business to business mediations at the Commercial ADR Blog (here and here) in the context of a dispute between a medical marijuana facility and its neighboring tenant.  For reasons not entirely clear to me, the new blog has been generating a lot more comments than this blog generally does which pleases me and leads me to let the Negotiation Blog's readers know of the on-going conversation over there.

Value-based fees in the mediation and ADR world

Yes, we do appreciate being appreciated so thanks to my great good virtual pal and construction attorney Christopher Hill for this post, Personal Thoughts on Construction Mediation.  Not only could I not have said it better myself, I've never been able to say it this succinctly.

Why does mediation work?  For several reasons that I can think of [including] the flexibility to make a business decision.  Commercial contractors and subcontractors are in a business, and they should be making business decisions.  While one such decision can be to go to litigation; litigation is not always the best solution from a financial, or stress perspective.  Construction professionals, with the assistance of construction attorneys, can come up with a creative way to deal with a problem and solve it.

Read full post at the link above.

(may I offer you a second helping of Jimmy Choo shoes with your turkey?)

Before sharing Brian Solis' succinct and brilliant post the Benevolent Acts of Reciprocity and Recognition and Highlights from the Research Project on Gratitude and Thankfulness (excerpt below) I want to once again make a few remarks about what we all seek to achieve with rights and remedies (particularly in the post-scarcity society in which we too often forget we live):

1. we want rights because we are genetically programmed and culturally conditioned to be fair (remember the Capuchin monkeys who, trained to work for "money" staged a sit-down strike when others doing the same work were compensated at five times the rate as their under compensated fellows);
2. rights are meant to guarantee us equal treatment in the distribution of public benefits and resources; and, equal access to public and private accommodations;
3. remedies are meant to restore private and public resources to those who have been deprived of them because some one; group; organization or governmental entity has broken one or more rules by which we have chosen to govern ourselves; and,
4. money is a means to an end, not an end in itself and each of us desires money for the same reasons - control of our own destiny (power; self expression); access to the benefits of the social contract (1. Freedom of speech and expression 2. Freedom of religion 3. Freedom from want 4. Freedom from fear); security against an uncertain future (access to medical services and a mimimal standard of living if we become unable to care for ourselves); meaningful occupation; the opportunity to be of unique service to our fellows; love; and, joy (monetary sub-goals such as a pair of Jimmy Choo shoes are also simply a [misguided] means to achieve these ends).

I have been taken to task for being "touchy-feely" or "new age" or of insufficient value to my "market" because I say these things repeatedly in public.  My "market," I'm told, would rather be right than happy; would rather someone lose so that they can win; and, believe the only thing anyone wants is money.

I don't believe it and I am committed to holding this space as a place-marker for my "people" who are suffering.  Which people are those?  Litigators. 

The challenge of this and every year:  How do we even begin to introduce the concept that we can more easily, efficiently and effectively satisfy the true interests of our fellows-in-the-social-condition than we can satisfy one individual's demand for preeminence over another? 

On our least divisive, most-inclusive and thoroughly secular holiday of Thanksgiving, we can begin to alleviate the suffering caused by zero-sum games with gratitude -- the benefits of which are being studied by a team of researchers at my legal alma mater, U.C. Davis.

Gratitude is the “forgotten factor” in happiness research. We are engaged in a long-term research project designed to create and disseminate a large body of novel scientific data on the nature of gratitude, its causes, and its potential consequences for human health and well-being. Scientists are latecomers to the concept of gratitude. Religions and philosophies have long embraced gratitude as an indispensable manifestation of virtue, and an integral component of health, wholeness, and well-being. Through conducting highly focused, cutting-edge studies on the nature of gratitude, its causes, and its consequences, we hope to shed important scientific light on this important concept. This document is intended to provide a brief, introductory overview of the major findings to date of the research project. For further information, please contact Robert Emmons. This project is supported by a grant from the John Templeton Foundation.

We are engaged in two main lines of inquiry at the present time: (1) developing methods to cultivate gratitude in daily life and assess gratitude’s effect on well-being, and (2) developing a measure to reliably assess individual differences in dispositional gratefulness.

Gratitude Interventions and Psychological and Physical Well-Being

* In an experimental comparison, those who kept gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared to those who recorded hassles or neutral life events (Emmons & McCullough, 2003).

* A related benefit was observed in the realm of personal goal attainment: Participants who kept gratitude lists were more likely to have made progress toward important personal goals (academic, interpersonal and health-based) over a two-month period compared to subjects in the other experimental conditions.

* A daily gratitude intervention (self-guided exercises) with young adults resulted in higher reported levels of the positive states of alertness, enthusiasm, determination, attentiveness and energy compared to a focus on hassles or a downward social comparison (ways in which participants thought they were better off than others). There was no difference in levels of unpleasant emotions reported in the three groups.

* Participants in the daily gratitude condition were more likely to report having helped someone with a personal problem or having offered emotional support to another, relative to the hassles or social comparison condition.

* In a sample of adults with neuromuscular disease, a 21-day gratitude intervention resulted in greater amounts of high energy positive moods, a greater sense of feeling connected to others, more optimistic ratings of one’s life, and better sleep duration and sleep quality, relative to a control group.

* Children who practice grateful thinking have more positive attitudes toward school and their families (Froh, Sefick, & Emmons, 2008).

There's more at the link!

Happy Thanksgiving.

I taught legal process in the context of mediating litigated cases yesterday at the American Institute of Mediation.  I volunteered my time for the singular opportunity to be a co-presenter with the brilliant Doug Noll (buy and read everything he's written; follow him on Twitter; subscribe to the RSS feed of his blog; and, listen to his podcasts and radio show) and the equally brilliant and most successful "non-lawyer" litigated case mediator in the English-speaking world, Lee Jay Berman of the American Institute of Mediation (follow him; take his Institute's courses; and, listen to whatever he has to say because your negotiation and mediation practice will improve 100% immediately).

Because Doug, Lee Jay and I spent the entire day yesterday talking about legal rights and remedies as well as legal procedure in the context of negotiating the resolution of litigation, I was once again engaged in the soul-searching that always accompanies situations challenging my loyalty to the adversarial/rights-remedies business and stimulates my enthusiasm for the interest-based, consensus building, collaborative, problem solving negotiated resolution business. 

I was looking for something else this morning when I once again stumbled over one of my favorite articles on this issue, Client Counseling, Mediation and Alternative Narratives of Dispute Resolution (Spring 2004) 10 Clinical L. Rev 833 by Law Professor Robert Rubinson.

Before giving you an excerpt that should tempt you to download the article and put it on your nightstand, I want to say this: I work on the razor's edge of my lifetime career-investment in the adversarial system, on the one hand, and my new'ish passion for collaborative, interest-based negotiated resolutions to disputes, on the other.  I spent 25 years as a warrior who rightfully took advantage of my adversary's weaknesses.  I was not a problem solver.  I was engaged in a fight to the death on a pre-determined field with rules in which I believed for causes I knew to be just.  As a result, I approach all alternatives to the adversarial process with a litigator's skepticism, wariness and world-wearyness.  There is no kumbya in me.  It is only my intellectual curiosity that survived the beating my heart took from the world-weary, cynical, grizzled old defense attorneys who taught me how to practice law (as adversaries testing my mettle) in Sacramento thirty years ago.

Sic transit gloria mundi.

The engine that drives litigation's morality tale is that conflict resolution is a contest between parties, one of whom necessarily represents good and the other necessarily represents bad.  As a result, litigation seeks to designate who has committed moral transgressions by breaching legal norms (or, from the perspective of the defendant, who wrongfully accuses others of having done so).

The Story of Mediation subverts these norms by transforming this familiar morality tale into a story of collaboration. This subversion begins through how mediation conceives of conflict itself. Implicit in the Story of Litigation is that conflict represents a breach of the norms of conduct, thereby ripping the social fabric in some way large or small. In contrast, in mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive.

Mediation's normalization of conflict, however, cannot eliminate what appears to be a deep-seated human need to understand experience in terms of struggles and strivings. Humans have great difficulty perceiving events as generated by causes beyond our control - what Amsterdam and Bruner evocatively describe as an inability to see events as "One Damn Thing After Another." We must instead "shape them into strivings and adversities, contests and rewards, vanquishings and setbacks."

The meta-narrative of litigation maps these "strivings" and "vanquishings" onto the struggle of one party against another and enlists the aid of the court to vindicate justice on behalf of the wronged party. In contrast, the meta-narrative of mediation seeks to map these "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process - collaboration - that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.

This story places mediators in a role that is very different from the role played by decision-makers in litigation. Rather than being heroes of moral vindication to whom wronged parties appeal for justice, mediators promote and model collaborative striving to overcome conflict. This plays out in many accepted techniques in mediation. Mediators, for example, often seek "commitment" from participants to the process of mediation, although mediators are careful not to extend this commitment to a commitment to agree. This commitment to process is a proxy for a commitment to collaborate to seek to resolve conflict, thus incrementally moving participants away from contested litigation and towards collaborative problem solving. Similarly, mediators often "reframe" participants' statements in order to emphasize "common ground." This is also an effort to move parties away from a morally charged contest and into collaboration. Finally, mediators encourage and model collaboration through a positive message of optimism and progress towards resolution, even when (or, perhaps, especially when) impasse appears likely.

Moreover, mediation approaches the narrative movement from Efforts to Restoration of Steady State in a very different way than litigation. Whether the Steady State is Restored or Transformed constitutes what I have earlier characterized as a "fork in the road" in the Austere Definition of Narrative. The very language through which litigants seek redress of grievances - to "be made whole," "to pay your debt society" (with its implication that payment of the debt would return the ledger to balance), even the word "remedy" - implies Restoration. In contrast, mediation tends to reject Restoration as a state to which the parties (and society as whole) should or even can return. Rather, mediation seeks Transformation on the part of all disputants so that conflict is resolved.  It does so by embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. Mediation, therefore, does embody a plot that adheres to the narrative movement described by the Austere Definition, albeit in ways that are utterly alien to the morality tale of the story of litigation. The story of mediation can be characterized as follows:

Steady State: Whatever Each Party Views as Pre-Conflict

Trouble: Whatever Each Party Views as Constituting Conflict

Efforts: Collaborative Striving To Overcome Conflict as Modeled and Promoted by Mediator

Transformation of Steady State: A New Relationship Among Parties

Coda: Moving On

                           *                          *                        *

Continue Reading

While reading this opinion (or simply this post) think about Carrie Prejean's accusation that Larry King's question to her -- "why did you settle" --was "completely inappropriate" because (presumably) her thought process was protected by mediation confidentiality. 

In yet another 2-1 opinion on mediation confidentiality -- Cassel v. Superior Court -- California's Second District Court of Appeal grapples with hard facts that made bad law. 

In conversations between litigation counsel and its client, Cassel, held on the days immediately preceding mediation as well as on the day of the mediation itself, Cassel allegedly told his attorney - Wasserman - that he would be willing to accept something north of $1.25 million to settle the case.   On the day of the mediation, Cassel signed a settlement agreement providing for payment of $1.25 million.  Cassel thereafter sued his attorney for legal malpractice, alleging that Wasserman "forced him to sign the settlement agreement for $1.25 million, rather than the higher amount he had told Wasserman . . . was acceptable." (if you're interested in the 411 on mediation advocacy malpractice, see my recent post Yet Another Path to Attorney Malpractice in Mediation Proceedings:  Coerce Your Own Client)

Before trial of the malpractice action, Wasserman filed a motion in limine asking the trial court to preclude the introduction into evidence of any testimony concerning Cassel's [otherwise attorney-client privileged] communications about the sum he was willing to accept in settlement.  The trial court granted the motion, holding that these communications - undeniably conducted in preparation for the mediation - were protected by mediation confidentiality under both the plain language of Evidence Code section 1119 and the Supreme Court decisions interpreting it.

The majority on the appellate panel disagreed for the following reasons:

1.  Communications between a party to mediation and the attorney representing him in that mediation are not part of the mediation "process" if they are not communicated to either the mediator or the opposing party because California law defines mediation as a procedure in which "a neutral person . . . facilitate[s] communication between the disputants to assist them in reaching a mutually acceptable agreement.”
2. "For mediation purposes, a client and his attorney operate as a single participant."
3. Once the court collapses the attorney and client into a single "participant," there are no mediation communications among participants to protect, or, as the Court more formally stated:  they were not communications between 'disputants' and the 'mediator,' as required to come within the definition of a 'mediation' or 'mediation consultation' and, therefore, to qualify for protection under mediation confidentiality."
4. "the fact that Cassel or his attorneys may have discussed a specific dollar amount for settlement" did not necessarily make it a communication that, in the Wimsatt Court's words "are materially related to, and foster, the mediation," because "some of the communications were more related to the civil litigation process as a whole rather than to the mediation."
5. the most principled (but not necessarily correct) reason for the Court's holding: the attorney and its client were "not within the class of persons which mediation confidentiality was intended to protect from each other—the “disputants,” i.e., the litigants—in order to encourage candor in the mediation process." 
6. finally, the Court's holding:

With start of trial within two weeks, the meetings and accompanying communications between Cassel and Wasserman . . . were for trial strategy preparation, not just for mediation . . .   The crux of the communications was that Cassel wanted his Wasserman Comden attorneys to honor his wishes, but they resisted to the extent, according to Cassel, that they breached their duties to him as his counsel. Neither Cassel nor Wasserman Comden assert that the communications contained information which the opposing party (or its representatives) or the mediator provided during mediation or otherwise contained any information of anything said or done or any admission by a party made in the course of the mediation. For the foregoing reasons, we conclude that the communications solely between Cassel as a client and his lawyer, Wasserman Comden, do not constitute oral and written communications made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” protected by section 1119, subdivisions (a) and (b) or communications by “participants” protected by section 1119, subdivision (c).

Huh??????  Because separate caucus mediation communications between attorney and client about the sum the client is willing to settle the case for are not communicated to the mediator or the opposing party during the mediation (especially if the attorney fails to communicate the client's expressed wishes?) they cannot be considered "communications made 'for the purpose of . . . a mediation consultation"??

This is perhaps the most convoluted reasoning of any appellate opinion in memory.  I'd prefer a decision that just came right out and said something along the lines of - sure the communication falls squarely within the language of the confidentiality statute, but we don't think it ought to apply where a client is suing his attorney for duress in the course of a mediation proceeding.  The Court is justifiably worried about saying that because the Supreme Court has repeatedly cautioned the lower courts not to make court-crafted exceptions to mediation confidentiality.  (See Simmons v. Ghaderi) 

Intellectual dishonesty never got any court anywhere near the goal of justice.  This might just have been the case that made the Supreme Court relent and say, "o.k., in this extremely narrow circumstance, we'll permit an exception to the statutory provision."  If the Supreme Court refused to budge, this case just might have persuaded the California legislature to make a few necessary exceptions to mediation confidentiality.  Now, unless the appellate court reconsiders and follows the wisdom of the dissenter, Californians won't be given the opportunity the common law creates to "course correct" the law-making process to meet the challenges of unintended legislative consequences.

As the dissent correctly observes:

In the end, the majority‟s analysis of section 1119, subdivision (a), seems to be founded primarily on its concern that protecting private communications between a client and his or her lawyer under the rubric of mediation confidentiality may shield unscrupulous lawyers from well-founded malpractice actions without furthering the fundamental policies favoring mediation. That may well be true; but, respectfully, it is not our role to make that determination. Rather, it is for the Legislature to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so.

For those more interested in Prejean than in mediation confidentiality, here's an analysis of the Prejean/King dust-up with the Prejean money quote:  "I don't see anywhere in the Bible where it says you shouldn't get breast implants."

And if you think mediation can't be as dramatic as courtroom "gotcha" moments, here's the proof that anything at all can and does happen in those "confidential" rooms:

It was reported by TMZ.com, who broke the story of the lawyers' gambit, that the lawsuit was settled within seconds of the sex tape being shown to Prejean. Just to make the episode even more embarrassing for the 22-year-old, her mother was also attending the meeting at which the tape was shown.

Description of the X-rated Perry Mason moment here.

Do remember that California law only precludes parties from:  (a) introducing confidential mediation communications into evidence; and, (b)  obtaining evidence of those communications in discovery.  Although sub-section (c) of section 1119 broadly provides that  mediation communications "shall remain confidential," no one to date has suggested that disclosure of those communications gives rise to a cause of action in favor of any party opposing their disclosure to the general public.   

After the jump, my colleague on the IP ADR Blog Mike Young of Alston Bird (Mike's Labor Law Blog here) gives the Cassel opinion a triple huh?????  Nice work, Mike!

Continue Reading

I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!)  Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet."  I took his presentation (characteristically and densely verbal) and added images to break up the text hoping that Ken won't mind supplementing the English language with pictures).

I highly recommend Ken's presentation (which was incredibly eloquent at the conference and not limited by the hard bruising text against text can do) as well as, of course, his brilliant and visionary book - Conflict Revolution.

I've been accused of Kumbaya here (ask some of my litigation opponents if you want to check out the truth of that particular canard). 

It's true that in addition to position-based competitive negotiation strategy and tactics in my mediation practice, I also facilitate what I believe to be the far more effective interest-based collaborative negotiation model, aimed at creating greater "deal" opportunities and avoiding mediation's bad reputation for splitting the baby in half (heard in the hallway:  "anyone can divide by two").

In addition to encouraging parties to ask diagnostic questions to ascertain the preferences, interests, needs and fears of their bargaining partners, I also encourage story-telling as a means to slip under the barricade of reactive devaluation, avoid the roadblocks created by the clustering illusion, overcome confirmation bias, and generally clear the air of the many other cognitive biases that keep us from entering into the best business deal possible under the circumstances.  

Why stories?  In a recent post on the importance of stories to effectively market one's work (here, one's blog) Problogger provided just a few of the  ways in which story-telling improves communication (these will also help with the jury, of course):

• Stories engage the imagination of readers
• Stories go beyond facts and theories
• Stories reveal something about yourself as a blogger (they’re personal)
• Stories trigger emotions and the senses
• Stories are conversational - they stimulate others to react and tell their stories
• Stories provide hooks for readers to latch onto in your blogging (they’re relatable)
• Stories grab and hold the attention of readers
• Stories are memorable – while people don’t always latch onto facts and figures – a good story can be remembered for years
• Stories illustrate your points in ways that can be much more convincing (and convicting) than other types of information

I was talking to a friend recently about ways in which to talk about a difficult subject with a friend whose opinions radically diverged from his own.

"Share your experience," I said.  "Tell your story rather than expressing your opinion.  An opinion is assailable. Your personal experience - the reasons why you feel the way you do about, say, gay marriage, abortion rights or any other "hot topic" issues - is unassailable.  It will also create a bridge of understanding between you, encouraging your friend to share his experiences that lead him to disagree so fundamentally with you.  You will inevitably find parts of your life-experience that are similar, sometimes even the same.  Focus on those similarities in experience rather than differences in opinion and you will find yourself and your friend happily agreeing to disagree on positions, theories and beliefs, in favor of a new and potentially trusting relationship."

If that is Kumbaya, so be it.  I must say, however, that it is also international diplomacy.  War, after all, is both easy and lucrative.  Peace, on the other hand, is difficult and underrated, even scorned. Choose wisely.  Our own future and that of our children and our children's children depend upon it.

Even so luminary a firm as O'Melveny has been smacked down by the courts (here, the Ninth Circuit) when trying to enforce employee arbitration agreements.  California lawyers would therefore be well-advised to read the opinion covered at the California Employment Law Report this week:  Arbitration Agreement Upheld Despite Employee's Argument It Was Not Mutual And Adhesive

Here's the clause:

I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.

This decision is made more interesting by the recent Parada decision (.pdf) (covered here and here) where the drafter's failure to attach the JAMS arbitration rules cited in the agreement was one of the reasons the Court concluded the arbitration clause was substantively unconscionable.  I think it's safe to say at this point in the development of California law on these issues that it's not malpractice for an attorney to fail to draft an enforceable arbitration clause.  But as the opinions multiply, you can be sure some employer will be looking around for someone to name its legal counsel as the source of his discontent, blame its law firm for having to bear the expense of litigation, and claim damages as a result. 

The best protection for drafters of arbitration clauses (particularly in California where the Courts remain suspicious of adhesion arbitration contracts) is to be familiar with all the case law on the topic in the last five years; to avoid any provision the Courts have used to tip the "sliding scale" in favor of non-enforcement and include those provisions which favorably incline the courts to enforce the clauses.  

Though I'm not wild about raising the over-discussed issue whether mediation is a profession, in writing L is for Lawyer (for the ABC's of Conflict Resolution) I had occasion to take a look at the characteristics of "professions." I thought I'd share them with my readers to add a little fuel to this long-burning fire because, frankly, L is for Lawyer is one of the most boring chapters of this book. 

From the Wikipedia entry on the topic "Profession."

They forgot the part about getting to wear a costume!  Hence the wig at right.

1. Skill based on theoretical knowledge: Professionals are assumed to have extensive theoretical knowledge (e.g. medicine, law, scripture or engineering) and to possess skills based on that knowledge that they are able to apply in practice.
2. Professional association: Professions usually have professional bodies organized by their members, which are intended to enhance the status of their members and have carefully controlled entrance requirements.
3. Extensive period of education: The most prestigious professions usually require at least three years^{[dated info]} at university. Undertaking doctoral research can add a further 4-5 years to this period of education.
4. Testing of competence: Before being admitted to membership of a professional body, there is a requirement to pass prescribed examinations that are based on mainly theoretical knowledge.
5. Institutional training: In addition to examinations, there is usually a requirement for a long period of institutionalized training where aspiring professionals acquire specified practical experience in some sort of trainee role before being recognized as a full member of a professional body. Continuous upgrading of skills through professional development is also mandatory these days.
6. Licensed practitioners: Professions seek to establish a register or membership so that only those individuals so licensed are recognized as bona fide.
7. Work autonomy: Professionals tend to retain control over their work, even when they are employed outside the profession in commercial or public organizations. They have also gained control over their own theoretical knowledge.
8. Code of professional conduct or ethics: Professional bodies usually have codes of conduct or ethics for their members and disciplinary procedures for those who infringe the rules.
9. Self-regulation: Professional bodies tend to insist that they should be self-regulating and independent from government. Professions tend to be policed and regulated by senior, respected practitioners and the most highly qualified members of the profession.
10. Public service and altruism: The earning of fees for services rendered can be defended because they are provided in the public interest, e.g. the work of doctors contributes to public health.
11. Exclusion, monopoly and legal recognition: Professions tend to exclude those who have not met their requirements and joined the appropriate professional body. This is often termed professional closure, and seeks to bar entry for the unqualified and to sanction or expel incompetent members.
12. Control of remuneration and advertising: Where levels of remuneration are determined by government, professional bodies are active in negotiating (usually advantageous) remuneration packages for their members.Though this this is sometimes done in good intention but can be proven good when the partner, family or mentor recommend something contrary to the general norms.This was further buttressed in the world bank essay paper written by [Idiaro AbdulazeezPaper Challenges and associated solutions for companies working together in collective

action to fight corruption available at [1].link title This has caused for global audience and even the worldbank launched an international competition in it people are used to Some professions set standard scale fees, but government advocacy of competition means that these are no longer generally enforced.^{[citation needed]}

1. High status and rewards: The most successful professions achieve high status, public prestige and rewards for their members.^{[citation needed]} Some of the factors included in this list contribute to such success.
2. Individual clients: Many professions have individual fee-paying clients.^{[dubious – discuss]} For example, in accountancy, "the profession" usually refers to accountants who have individual and corporate clients, rather than accountants who are employees of organizations.
3. Middle-class occupations: Traditionally, many professions have been viewed as 'respectable' occupations for middle and upper classes.^[25]
4. Male-dominated: The highest status professions have tended to be male dominated although females are closing this gender gap^{[dated info]} Women are now being admitted to the priesthood while its status has declined relative to other professions.^{[citation needed]} Similar arguments apply to race and class: ethnic groups and working-class people are no less disadvantaged in most professions than they are in society generally.^{[26][dated info]}
5. Ritual: Church ritual and the Court procedure are obviously ritualistic.^{[who?][citation needed]}
6. Legitimacy: Professions have clear legal authority over some activities (e.g. certifying the insane) but are also seen as adding legitimacy to a wide range of related activities.^{[citation needed]}
7. Inaccessible body of knowledge: In some professions, the body of knowledge is relatively inaccessible to the uninitiated. Medicine and law are typically not school subjects and have separate faculties and even separate libraries at universities.^{[dated info]}
8. Indeterminacy of knowledge: Professional knowledge contains elements that escape being mastered and communicated in the form of rules and can only be acquired through experience.^{[citation needed]}
9. Mobility: The skill knowledge and authority of professionals belongs to the professionals as individuals, not the organizations for which they work. Professionals are therefore relatively mobile in employment opportunities as they can move to other employers and take their talents with them. Standardization of professional training and procedures enhances this mobility.^[27].

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109. 

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line ^[2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. ^[3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,^[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third. 

My imagined grandchildren, ^[6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) ^[7] and play many of the same games ^[8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) ^[9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. ^[10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  ^[11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.

^[12]

Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. ^[13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide ^[14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. ^[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. ^[16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.^[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.

 ^[18]

As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist). 

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate ^[19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. ^[20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  ^[23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  ^[24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple Justice.  Charon QC also weighs in on the ABA Legal Rebels project here.

Arbitration

Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. ^[25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors. 

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named:  Martin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.

A big thank you to local mediator Steve Mehta for

By Steven G. Mehta

A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct.  Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them.  Recent research sheds light on this issue.

According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.

Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.

“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”

Continue reading here.

What???????????? 

This opinion -- Palmer v. State Farm - is wrong on so many levels that it's no surprise the appellate court ordered that it not be published.  The opinion therefore controls only the fate of the parties to the case and cannot be cited as authority.  The no-publication order does not, however, diminish my distress about the mediator's decision to file a declaration in support of State Farm's motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings.  

The appellate court affirmed the trial court's enforcement of the post-mediation settlement agreement based, in large part, on the mediator's sworn declaration that State Farm's formal agreement accurately represented the one signed by the parties during the mediation --  a matter that, if true, should have appeared on the face of both documents.   See HANDWRITTEN SETTLEMENT SHOWS PARTIES' INTENT, CALIF. COURT FINDS for a summary of the Court's decision.

What's wrong with this opinion?  Let me count the ways.

In California, a mediator is presumed incompetent to testify under Evidence Code section 703.5.  A good thing, too, since mediators are bound by the confidentiality provisions contained in  Evidence Code section 1115 et seq. /1

Mediators are also required to be -- ahem -- NEUTRAL.  Why was this mediator providing a sworn declaration to support State Farm's case against the policy holder?  And does his drafting of the handwritten agreement at the mediation give him a personal or professional stake in its enforcement, thus further undermining his neutrality. 

I'm not going to mince words about this.  I believe it falls below the standard of care for a mediator to voluntarily provide a Declaration to the Court concerning anything anyone said during the mediation, including his opinion about what the parties an meant to say when they entered into a settlement agreement (an intuition that could only be based upon confidential communications).  I also believe that its below the standard of care for a mediator to voluntarily provide a declaration to one party in support of a motion against another party to the mediation.  The fact that the mediator provided a declaration in support of State Farm (and not the policyholder) is even more troubling when you consider the fact that insurance carriers are repeat players in ADR circles and hence a better source of business for mediators than single-player plaintiffs.

On the confidentiality issue, it is notable that the mediator-drafted agreement stipulated that:

The parties waive the provisions of [the] California Evidence Code relating to mediation confidentiality, rendering this agreement enforceable pursuant to . . . section 664.6.”  (Italics added.)

The language used suggests to me that the purpose of the clause was to render the written agreement admissible in evidence to prove its existence  -- "waive . . . mediation confidentiality [to] render[] this agreement enforceable."  I know it doesn't say that.  It says that the parties are waiving confidentiality  PERIOD.  It would surprise me if that's what the parties meant to do, i.e., open up to judicial scrutiny every communication uttered in the course of the mediation - in separate caucus and joint session.  Would a mediator be liable for an ambiguously drafted agreement that leads to the loss of mediation confidentiality for the parties?  I don't have an answer to the question but mediators might want to ask themselves whether they should be drafting the parties' agreements if they want their malpractice premiums to remain as low as they are today.

Hat tip to my husband Stephen Goldberg, who blogs at the Catastrophic Insurance Coverage Blog for the head's up on this. You should post on this one honey.  It gives you something else to rail against the insurance carriers about!

__________________

1/  It is not clear from the opinion whether the Court treated the mediator's declaration as one from an expert.  It does appear, however, that the mediator's declaration was in the form of a legal conclusion -- the formal written contract was the same as the handwritten contract -- testimony that is inadmissible to interpret the meaning the parties gave to the agreement at the time of contracting.  See the Construction Weblink Article Experts' Opinions on Contract Interpretation here by John W. Ralls of Howrey's San Francisco office.

Let me begin with a radical proposition the expression of which my colleagues assure me will doom my mediation career. 

Ready?

Attorneys and their clients do not know what type of mediation is best for them any more than they know how to cure their own cancer.

I've been told that "the market has spoken and it wants evaluative mediators."   I'm sure the cancer "market" would also like to speak to its physicians.  If I had malignant melanoma, I'd love to find a doctor able to cure it with rational argument, hard-ball tactics, and position-based negotiation.  Surely he can convince my cancer that it's wrong and cannot win the battle simply by replicating itself over and over again.  If he's such a good doctor, why can't he convince my adversary that it's just not right?!

You say the physician has specialized knowledge and experience in cancer treatment and knows better than I what will be the most efficient and effective medical protocol? Is my reasoning faulty?  Do litigators know how to "treat" their conflict resolution problem with evaluative mediation because they've experience success with it?  Maybe.  But how do they know?  Are they aware whether they "left money on the table" or paid more than the other guy was willing to accept?  Who might be in possession of that extremely valuable information? 

Uhhhhhhhhhhhhh, the mediator????

Let's talk to the social scientists about why people might prefer evaluation followed by a mediator's proposal.  According to a recent Fast Company article, Why Your Gut is More Ethical Than Your Brain, people would rather put their fate in the hands of someone they’ve been told is a rational decision maker when an "emotional" decision-maker would have delivered a better result.  The article at issue doesn't answer the question "why" but I have an educated guess.   We trust reason and distrust our "gut."   That's what we were taught in my scientific generation and we continue to trust these initial teachings even as science moves forward to prove that our feelings + our subconscious ("intuition") almost always make a better decision than our rational thought processes, which are generally simply rationalizations for what our "gut" decided without "us."  

So what's the take-away here? 

It is indisputable that one of the primary purposes of a settlement negotiation is the attempt to value an eventuality that cannot be predicted - the outcome of litigation.  But value it we must -- at least within some reasonable range -- considering the thousands (perhaps tens of thousands) of variables in play -- the settled or unsettled state of "the law"; the ability of each party to make their narrative coherent at worst and compelling at best; the location of the court where the matter will be decided - downtown Los Angeles; Santa Monica; or San Francisco -- cities with very different "deciders"; the ability of each party to withstand the economic burdens imposed by the litigation; the capacity for one party's counsel to "bury" the other's; the veracity of the witnesses; the historic record for victory or defeat for this type of case in that type of industry; the personality, politics, or idiosyncrasies of the Judge; and, even the time of year during which the case is to be tried, not to mention the skill and experience of counsel for each side.

To these uncertainties we must add the cognitive biases to which we are all vulnerable no matter how "rational" and scientifically-minded we are.  These cognitive "tendencies" include our inclination to seek out and believe "facts" that support our position and to avoid, ignore or discount those that do not (confirmation bias); our tendency to discount as unworkable, without merit or downright evil suggestions our opponent forwards (reactive devaluation); our capacity to create patterns and narratives where none exist (clustering illusion); and, our unfortunate weakness of buying our own B.S. (self-serving bias) to name just a very few. (See Diane Levin's recent post on these and other cognitive errors here)

Despite the difficulty inherent in evaluating the merits of one's own case (and of the mediator's attempt to value each side's chance of victory based upon no admissible evidence and the untrustworthy nature of both party's factual narrative and legal analysis) a mediator helping litigants and their attorneys settle a case must be capable of asking pointed questions that will counteract the parties' biases to some degree and help them understand the truly unpredictable nature of a law suit's resolution.

All of that being said, anyone who believes that this evaluative process is at the heart of a good mediation needs to spend some time with better mediators.  A truly brilliant mediator (and I am not here counting myself among them) helps the parties move beyond the very narrow issues raised by the litigation and past the spoils to be won or lost there.  A gifted mediator is able to help the parties ascertain their own as well as their negotiation partner's true preferences, desires and needs; to open the bargaining session up to include every item of value the parties have to exchange; and, to locate and resolve, for each party, the experience of injustice that brought them to the difficult and pricey decision to hire outside litigation counsel in the first place.

What we litigators tend to forget in the heat of our battles to win the discovery motion; prevail on our request for a pre-judgment attachment; procure the testimony we need for the silver-stake motion for summary judgment; or, write the winning Petition for Writ of Mandate or appellate brief, is that our clients want to make a savvy, sophisticated and durable business deal that leaves them feeling (yes, feeling) that the settlement reached does not constitute a gross miscarriage of justice.

That's the view from this side of the mediation table after five-years of full-time neutral practice and twenty-five of litigation and mediation advocacy.

Like the trial lawyer facing a jury, a skillful mediator facing counsel and clients must provide both the most educated and honest rationale for his or her valuation of a party's chances at trial; the most empathic response to the clients' many expressions of anger at the injustice of it all; and the facilitation of a commercial negotiation in which making the best business deal is of far more importance than proving one's "case" right.

Do choose a mediator able to open up the hood of your opponent's case (and your own); to kick the tires; and, to note the rusted places under the thin coat of a recent paint job.  If, however, "valuation" is the best your mediator can do, you need to raise the bar for excellence and experience the satisfaction you feel when your client says, "great job!  It's a good settlement and a fair one as well." 

Don't Let the Mediator Bully the Parties from Six Ways to Insure Your Construction Mediation Will Fail over at the Construction Law Musings Blog.

A mediator who is bullying you or your client to settle simply hasn’t gotten the knack of asking questions and creating opportunities. She’s still too used to wielding power. If it’s important enough to spend your day mediating, it’s important enough to tell the mediator that you do not want her bullying any of the parties.

I was co-mediating the final day of a construction dispute with twenty-five to thirty parties when my colleague lost his cool. By two in the morning, a single sub-contractor was holding all parties hostage to his refusal to settle even though he was alone in having achieved all but complete victory – the Plaintiff having agreed to exchange mutual releases to settle with him. Nevertheless, the sub adamantly refused to give up his right to bring a malicious prosecution action against the Plaintiff.

“He needs a woman’s touch,” my co-mediator suggested.

Male or female, someone needed to learn why this single defendant had become so intractable. A bit of questioning revealed that early in the litigation, the sub’s attorney had inadvisably assured his client that he could win a malicious prosecution suit. Counsel was not about to back down now, particularly after he’d been harangued by my colleague in front of his client. I was all but certain the sub had no intention of spending further money litigating the case. Why was he clinging to his right to sue? The three of us talked for 45-minutes while the rest of the parties waited. I don’t know what it was in that conversation that revealed the problem to me. I only know that at some point I realized that the sub could not justify the money he’d paid his counsel unless he emerged from the litigation victorious.

“You know,” I finally said, “you’re the only defendant who actually won here.”

“How do you figure that?” asked the sub, eyeing me with suspicion.

“Everyone else, no matter how unlikely their potential liability, had to pay the Plaintiffs to be released from the case. Your attorney is the only attorney who negotiated a settlement for nothing. He won!

And the case promptly (and finally) settled.

Remember that settlement is not about power or authority. It’s about influence and you cannot influence another human being by bullying him. You can only influence him by asking questions, listening carefully to the answers, and responding to the need he is expressing. Not only will hectoring fail to produce the desired result, it will usually trap the bullied party into a position he has no actual desire to maintain. Restrain the pitbulls and release the attentive questioners. Theirs is the Kingdom of Resolution.

And just in case you think my mediation advocacy malpractice series is picking on attorneys, here is ADR Professor Michael Moffitt's excellent article from the Harvard Negotiation Law Review, Ten Ways to Get Sued:  A Guide for Mediators (.pdf).  Here are the ten ways.  For an exhaustive analysis of each, read Moffitt's article.

1. Fail to Disclose a Conflict of Interest
2. Breach a Specific Contractual Promise Regarding Structure or Outcome
3. Engage in the Practice of Law
4. Engage in the Practice of Law Badly
5. Breach Confidentiality Externally
6. Breach Confidentiality Internally
7. Maintain Confidentiality Inappropriately
8. Advertise Falsely
9. Inflict Emotional Distress on a Disputant
10. Commit Fraud

There's also a (disturbing) "head's up" note in a 2006 BYU Law Review "Comment" that mediators may eventually be open to lawsuits for breach of quasi-fiduciary duties.  Despite noting the antipathy in the legal and mediation community in the past for imposing fiduciary duties to the parties, the Comment concludes by predicting that:

mediators may likely owe some level of fiduciary obligations to the parties in certain mediation proceedings--primarily fairness, impartiality, confidentiality, disclosure of conflicts of interest, good faith, and no false misrepresentation. This knowledge allows mediators to prepare for the trends of the near future, when mediation will likely take an established place among the professions, with the accompanying benefits and liabilities of such a position.

THE WRITING ON THE WALL: THE POTENTIAL LIABILITY OF MEDIATORS AS FIDUCIARIES, 2006 BYU Law Review 1033.

As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn.  There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi) (.pdf of the opinion here). 

Your client may have been coerced into signing off on the agreement; may not have understood what she was signing; or her assent could have been induced by your opponent's material misrepresentations of fact.  Your client's insurance carrier may be guilty of actionable bad faith during the course of the mediation.  Too bad.  The mediation proceeding is given greater protection than given to penitents in a confessional.

But you can inadvertently expressly waive the protections of mediation confidentiality if you've carelessly crafted your own confidentiality agreement.

California's Second District Court of Appeal held in Thottam (.pdf of opinion here) that a party's confidentiality agreement did just that -- waived the protection -- permitting one party to introduce an otherwise inadmissible draft agreement into evidence for the purpose of enforcing an otherwise unenforceable mediated settlement agreement.

As the Court in Thottam held, Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure," may be satisfied by terms contained in a writing other than the alleged settlement agreement itself, including a writing executed before a settlement agreement has purportedly been entered into.  Because the "draft agreement" at issue in Thottam did not contain 1123's "magic" enforcement language and because the term sheet drawn up during the mediation was not sufficiently certain to enforce in any event, one party to the subject probate proceeding objected to its introduction into evidence and to the admission of testimony concerning otherwise confidential statements made during the mediation.

Had there been no confidentiality agreement, the issue would have been controlled by Evidence Code sections 1115 et seq.; the "agreement" would have been excluded from evidence as non-compliant with section 1123; and, no evidence of statements made during the mediation would have been admitted into evidence. 

Here's the danger of drafting your own confidentiality agreements in an attempt to expand the scope of mediation confidentiality.  

According to the appellate court opinion, because the parties expanded the scope of confidentiality beyond that provided by the statute, the exception to the protection ("except as may be necessary to enforce any agreements from the Meeting") was broader than the enforcement exception contained in section 1123.  As one blogger cogently put it at the time, "the big print giveth and the small print taketh away."

I think it's safe to say that this result was pretty much completely unpredictable and that it was within the standard of care for counsel to expand the protections contained in section 1119  (for an example of the problems created by its relatively narrow confines, see mediator Debra Healy's comments and my response about the scope of mediation confidentiality in an earlier post in this series).

Post-Thottam, however, counsel must be extremely careful in drafting confidentiality agreements lest they inadvertently take away the protections the legislature created and the Supreme Court has so assiduously enforced.

In short, don't get fancy.  Just stick with the language of section 1119

That's not a summons and complaint for malpractice, is it?  Because of something you didn't know about ADR advocacy? 

C'mon!  ADR is all about avoiding litigation, not creating it, right?  The good news is that there hasn't yet been an ADR malpractice suit of note.  The bad news is, I see ADR negligence at least once a month and am holding my breath against the day lawsuits began a'poppin. 

To help you avoid ADR malpractice, here is just one of ten pitfalls to be covered in this series that can make you a malpractice magnet for disgruntled clients. 

1. write up a "term" sheet reflecting your mediated settlement agreement without including the "magic language" of Evidence Code section 1123
   1. absent this language, a party with buyer's remorse can resist the enforcement of a "term sheet" if he feels he was was coerced into signing it; entered into it based upon a misrepresentation of material fact made during the mediation; or, that it simply does not accurately reflect the terms the parties' orally agreed upon during the mediation
   2. use the magic language of Evidence Code section 1123 and your "term sheet" should be enforced and your client's bargaining partner precluded from introducing into evidence (pursuant to section 1119) any statement made by anyone during the course of the mediation, including allegedly coercive, misleading, or, fraudulent statements of fact allegedly inducing his consent.
   3. as Orange County mediator William J. Caplan points out in his lively 2005 article, The Quick Brown Lawyer Jumped Over the Mediation Traps, the "magic words" are “admissible,” “enforceable,” “binding,” and “subject to disclosure.”
   4. the cure (from Caplan again) is the following "belt and suspenders" clause:

The parties intend this Agreement to be admissible, binding and enforceable, and subject to disclosure within the meaning of those terms in California Evidence Code § 1123 (a), (b) and (c), and this Agreement is expressly not privileged from disclosure under California Evidence Code § 1119. In addition, if the formal Settlement and Mutual Release Agreement contemplated hereinabove is [e.g., not executed within ten (10) days of the date of this Agreement] this Agreement may be enforced by motion under California Civil Code § 664.6 and the court shall retain jurisdiction over this Agreement until performance in full of the settlement terms herein.

Below is an Orange County Superior Court form that satisfies the requirements of section 664.6 (providing an expedited enforcement mechanism for the settlement agreement) but which fails to recite all of the magic words including admissible, enforceable, and subject to disclosure.  So please don't trust any form other than your own!!  Even forms issued by the Courts. The fact that you are entitled to an expedited hearing under 664.6 to enforce your mediated settlement agreement does not mean that you will be permitted to enforce the agreement against your opponent's will.

SB-66 Stipulation For Settlement (CCP 664.6) - California

Of course the best way to avoid claims arising from buyer's remorse is to create a durable settlement that all parties will want to enforce.  That means avoiding agreements that your client enters into when he or she is hungry, angry, lonely (i.e., sidelined) or tired (HALT).  It also includes agreements that feel coerced by an overly aggressive mediator preying on the weaker of the two (or three or four) parties.  And yes, Virginia, there is always a more vulnerable party; all mediators recognize who that is; and, too many mediators make a beeline for that party's soft under-belly.

Another way to avoid challenges to the mediated settlement agreement include:

• bringing a fillable template settlement agreement (and these days, also a Stipulation for the Entry of Judgment in the event of default on a payment plan) that is a complete, final and binding agreement that contains the "magic language" of section 1123 that all parties execute before they leave the mediation session (no matter how tired everyone is and how much everybody wants to just go home and deal with the inevitable nit-picking over the relatively inconsequential terms of the agreement tomorrow). 
• not letting your fear that the "details" might blow up the "deal" you've spent so many hours negotiating.  You know how these deals go off the rails the following morning when your opponent begins to nit pick terms, often as a face-saving mechanism.  Let the mediator help you close the deal right there and now, assisting the parties in resolving the minor terms that can blow up in your face if left until tomorrow.

And speaking of tomorrow, I'll have Tip No. 2 for avoiding malpractice litigation arising from mediated settlement agreements.  Stay tuned!

For more posts on confidentiality in both California state and 9th Circuit district courts, click here.

Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice.   - Margaret Atwood

Every year, a town in Japan named Taiji kills 2300 dolphins and small whales.  This year, that slaughter was halted for a single day because of the activism of the man who trained Flipper for television, Rick O'Barry.  Here's his account of the making of The Cove.   

Below us, just across a two-fingered inlet, was the Killing Cove, where 2300 dolphins and small whales are butchered every year. [/*] It's the place Allison and Alex had infiltrated in 2002, managing to cut the nets and free some 15 dolphins before the two were assaulted by fishermen and arrested.  The killing here is part of a cetacean slaughter that is unregulated by the I[nternational] W[haling] C[ommission], which has no jurisdiction over the smallest whales.  The Japanese don't even have to pretend it's for scientific research.  The government issues permits to fishermen and over 22,000 dolphins, porpoises, pilot whales and false killer whales are killed annually along Japan's coasts.  The meat is sold to school lunch programs and grocery stores and is terrifically high in mercury.  Independent random tests have found the dolphin meat to contain three to 3500 times the levels deemed safe by the Japanese Government.

What did Flipper's trainer want to do?  He wanted to stop the slaughter.  Here's where the Harvard Negotiation article on power in negotiation comes in.  I'll let the authors of the Harvard article speak for themselves.

In order to understand [why the less powerful sometimes prevail against their more powerful bargaining partners] one needs to analyze power as more of a relational and perceptional concept. The relational dimension is captured in Dahl’s definition that “A has power over B to the extent that he can get B to do something B would not otherwise do." For example, most non-governmental organizations (NGOs) are less resourceful than the World Bank. Yet the Bank can enhance the legitimacy of its programs by including NGOs. Over time, participating NGOs could influence the Bank’s agendas to some extent.  Thus viewed, parties with asymmetric resources may well share a mutually dependent relationship.

 It is also worthwhile to note that power sometimes lies in the eye of the beholder. A party’s decisions may be shaped as much by its perception of the situation as by objective reality.  Zartman and Rubin, in studying power in negotiation, define it as “the perceived capacity of one side to produce an intended effect on another through a move that may involve the use of resources.[A]s Fisher and Ury have pointed out, the resources a party owns do not necessarily translate into effective negotiating power, which is much more context-specific. The authors cite the example of the US, which “is rich and has lots of nuclear bombs, but neither has been of much help in deterring terrorist actions or freeing hostages when they have been held in places like Beirut"

The common tactics under a power-based approach include coercion, intimidation, and using one’s status and resources to overpower opponents. 

One tactic omitted from the list of power-based tactics is one of the most compelling -- the strategy used by Martin Luther King, Jr., Ghandi and, yes, anti-abortion activists -- bearing witness and shaming.

There are many moments of shaming and bearing witness in The Cove --   the moment when activist O'Barry holds his iPhone before the eyes of the Japanese official who has just told him that cateceans are killed quickly, with surgical precision (you can see that moment in the trailer here).  There's the day O'Barry, who has been permanently barred from IWC's conferences, walks in with a flat screen television strapped to his chest and silently moves in front of each row of delegates, showing them the video of the slaughter in the Killing Cover.  And then, at movie's end, the wrenching scene of O'Barry standing in the middle of a crosswalk in Tokyo, that same flat screen  on his chest, silently bearing witness as thousands rush past him and a few, half a dozen perhaps, stop in their tracks to watch the footage of the fisherman in the Killing Cove that he and his team gathered at the risk of their freedom and perhaps their lives.

It appears that the slaughter was halted for only a day.  Here's O'Barry's account of that day  (excerpt below):

I vowed to be back in Taiji when the dolphin killing began. I’ve often been here alone, or accompanied by a few environmentalists. Sometimes, I was able to talk a major media organization into sending someone.

When I got off the bus at the Cove this afternoon, I was accompanied by my son Lincoln O’Barry’s film crew, a crew from Associated Press, Der Spiegel (the largest magazine in Germany), and the London Independent.

I was talking with the police, as the international journalists stood around listening, suddenly a camera crew arrived from Japan! And then another! And then still another!

You have to understand that this is SO IMPORTANT. These TV stations have REFUSED to cover the story in Taiji for years and years. NOW, for the first time, they have shown up, with cameras rolling.

The Cove movie led to the strong action by the city of Broome, Australia, in suspending the sister-city relationship with Taiji. So now, the Japanese media are sitting up and listening, for the first time.

[A]ll Japanese will soon know about the cover-up that has occurred by the government in refusing to stop mercury-contaminated dolphin meat from being sold to unsuspecting Japanese consumers and children.

But Taiji can change this image of shame, if they want to. I will be telling them that the town of Nantucket used to be the capitol of the whale killing industry in the US. Now, it uses its history of whaling combined with whale-watching to market tourism very successfully. Whales and dolphins are worth more alive than dead. Taiji can do this, too. But the killing has to stop.

Alas, the cessation of the killing lasted only a single day.

 Once shameful national behavior has been exposed (a contentious or power-based negotiation strategy) the weaker parties (people vs. governments) must build their negotiating strength through trust.  As Power and Trust in Negotiation and Decision Making asserts:

Identification-based trust is grounded in empathy with another person’s desires and intentions and leads one to “take on the other’s value because of the emotional connection between them.”  It often exists among friends. Fostering understanding and friendly ties may therefore be a step to engender identification-based trust. For example, Reagan and Gorbachev developed a cooperative relationship in the late 1980s partly because they had repeated face-to-face talks over the years.  Reagan also sought to cultivate a non-hostile atmosphere in these talks by appealing to common interests, actively diffusing tensions and using his sense of humor. Because friendship and liking tend to generate trust and assent – sometimes in a subconscious fashion – Cialdini observes that salespersons often befriend their customers before promoting their products. Trusting someone in certain situations may thus come with risks of manipulation or exploitation

In asymmetrical power relationships, the building of trust among activists is necessary for the formation of a grass-roots coalition capable of overwhelming more powerful parties (perceived economic and national interests as well as that most powerful of impasse creators:  the status quo) with passionate commitment to an idea and the hope that the idea can be made a reality.  

O'Barry's documentary is a call to action that asks us to respond to our "better angels."  If enough of us hear the call and respond, there is no power that can stop this movement to stop the killing. 

As Martin Luther King, Jr. once said, "the arc of history is long but it bends toward justice."

______________________

The Harvard Negotiation article is a gift from Don Philbin who directed his Facebook readers to  Power and Trust in Negotiation and Decision-Making:  A Critical Evaluation at the Harvard Negotiation.  If you have any interest whatsoever in the dispute resolution techniques of negotiation, arbitration or mediation and you're not following Don (whose Facebook page is here and whose tremendous LinkedIn Arbitration and Mediation Group is here and whose group blog Disputing is here) you're missing the Mother of All ADR Aggregators and your life is the poorer for it.

*/  There were reports that international pressure caused the suspension of the annual dolphin hunt but the linked article from the Japan Times suggests that it resumed on the second day of the season on September 2.

Someone recently told me that you can't argue with a story, only with a position or another argument.  That's why narrative is such a powerful impasse breaker and why asking diagnostic questions, which elicit stories rather than arguments, so often bridges gaps between the parties that yawn as wide as the Grand Canyon  That's why I'm listing Asking Diagnostic Questions as the second most powerful means of breaking negotiation impasses.

Professor Leigh Thompson of the Kellogg School of Management at Northwestern University has written that in controlled experiments, only seven percent of all negotiators ask diagnostic questions when to do so would dramatically improve the outcome of the negotiation.  

Diagnostic questions are those that reveal your bargaining partners’ desires, fears, preferences and needs. Though your bargaining partner will never reveal its true bottom line, it may well acknowledge that it places a far lesser or higher value on the subject of litigation  – real property, for instance -- than you do. And though your adversary will never acknowledge the rectitude, nor even often the good faith, of your legal or factual position, she may easily disclose that she needs the money she seeks to infuse capital into her business, to pay back debts, to put her children through college or to acquire much-needed catastrophic health insurance.

You may also find that your bargaining partner is willing to disclose whether he is risk averse or risk courting and whether his predictions for the future of an enterprise – yours perhaps – are more optimistic or pessimistic than your own. Once you learn what your opponent wants, needs and prefers, you can commence – or reconvene – a negotiation that is more tailored to your adversary’s desires; one that will increase the number and value of items both of you have to exchange with one another.

Just a few examples from my own practice:

• a case concerning the repayment of over-paid health insurance benefits to physicians settled at a number the defendant said she would never pay when the Plaintiff revealed the existence of an agreement between it and a board member that no one else who was overpaid would get a better deal than he had.
• a case concerning the dissolution of a partnership settled when I asked Partner A what his valuation of the enterprise's inventory was in a case to dissolve the partnership.  Because he placed a far lower value on that inventory than did Partner B, Partner B (who planned to continue in the import-export business)  was happy to accept A's valuation, offering to purchase it from him on the spot (and agreeing to a lower valuation of the good will of the partnership business than he'd earlier been prepared to acknowledge).
• a property damage case settled when I asked the Plaintiff, in separate caucus, what he planned to do with the proceeds of the settlement.  The defendant, who "knew someone in the business," was able to obtain the item Plaintiff wanted at a lower cost than Plaintiff could have procured it, bridging the gap between the parties' negotiating positions.
• a patent infringement case settled when I asked the Plaintiffs what they were afraid would happen if they agreed to give the alleged infringer a license to manufacture and market the allegedly infringing product.  Plaintiffs said they believed the market would "get really hot" in three years time, allowing the infringer to make a killing on their technology.  When I asked the defendant what he thought about Plaintiffs' suspicions, he said he planned to phase the product out of his product line within three years.  I suggested that the defendant agree to a graduated royalty which would require him to pay an unusually high percentage of its sales during the years Plaintiffs were convinced he'd be selling "their" product and at a time when Defendant swore he would not. 
• In a lemon law case, I asked the Plaintiffs to tell the mobile home manufacturer to explain why they'd purchased the $200,000 vehicle in the first place.  Plaintiff's answer so undermined the defendant's "buyer's remorse" theory of the case that the matter settled quickly thereafter.
• I asked a perplexed defendant why the Plaintiff had chosen to sue it out of the entire universe of Plaintiff's competitors.  Defendant quickly responded:  "because we have better people, more talent and potentially better technology.  Plaintiff wants to remove us from the market"  I thereafter brokered a deal involving a joint venture between the two companies using company A's talent and company B's far larger distribution network.

As you can see from these few examples, diagnostic questions break impasse on "pure money" cases, as well as in those where the parties more or less obviously have something other than money to trade.  Once again, it is critical to remember that no one wants money but everyone wants something that money can buy.  Ask the ultimate reporter question about your negotiating partner's fears, desires, wants and needs -- WHY? -- and you will see impasse dissolving before your very eyes.

With apologies to "staying on topic" purists, I give my Lit Major readers the literary passage that comes to mind whenever I think too long about asking questions:

try to love the questions themselves as if they were locked rooms or books written in a very foreign language. Don't search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.

Rainer Maria Rilke, Letters to a Young Poet.

I cannot recommend John DeGroote's Settlement Perspectives blog too highly or too often.  This week he praises CPR's new Early Case Assessment Guidelines.  Praise from John is hard to come by.  I join in his comments below and suggest that all my readers click on the link below for his excellent commentary.

The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment ; Guidelines (2009), which are designed to “set forth a process designed to help businesses decide early on how to manage disputes, including identifying key business concerns, assessing risks and costs, and making an informed choice or recommendation on how to handle the dispute.”  They certainly meet their objectives.

Continue reading CPR Publishes Early Case Assessment Guidelines here.

Ralph Williams August 2009 ADR Tip

_______________________________________________

When 50-50 partners break up, the Closed Dutch Auction is an effective way to set the buyout price. The partners exchange sealed bids stating the price at which they will sell their 50% share. The highest bidding partner "wins" and buys out the "loser" at the "loser's" price.

The price set by each partner must be realistic, because if he "loses", the partner will have to sell at the price he set. Setting too low a price has a double adverse effect; the "losing" partner will be the seller at the lower price.

Ralph O. Williams III
ADR: 310.201.0010

 This new video just in from Mediate.com.  No, it won't inspire attorneys to mediate sooner than they already do nor drive any attorney to your mediation door.  But it will introduce mediation to young people as a dispute resolution method that is in tune with the times - collaborative, reciprocal, fast, flat and flexible.

This is particularly timely for me as I sent my British law intern to the complex court to observe a status conference in an environmental coverage case that has been pending longer than she's been alive!

Many ADR bloggers (including me) have written extensively about the imposition of standards or the implementation of "best practices" in mediation. 

This week, Diane Levin at the Mediation Channel, hits the issue out of the ballpark, summaizing the arguments on both sides; providing solid resources for study and analysis; and, raising the important issues the mediation community will ignore to its detriment.

As Levin writes in To certify or not to certify:

One of the burning questions the U.S. mediation profession faces is a difficult one: is it time to professionalize the field and establish more formal mechanisms for credentialing?

As of today, the private practice of mediation in the United States is unlicensed and unregulated by the state. No public licensing boards  oversee or regulate the private practice of mediation. Barriers to entry into the profession are virtually non-existent; no degree, no experience, no training  is required before you order the business cards that proclaim you to be a mediator.

This has understandably caused consternation among the many members of the profession concerned with quality assurance. It certainly troubles me, a trainer of mediators. And it has prompted some, like my colleague Victoria Pynchon, to wonder out loud whether it’s time to license mediators to protect the public from the unscrupulous.

As the use of ADR has spread, numerous institutions, providers of mediation services, and membership associations for ADR professionals have endeavored to set standards of quality for mediators. In Massachusetts, for example, the Supreme Judicial Court promulgated qualification standards for mediators serving in court-connected programs (PDF) (which set the bar very low indeed, requiring only 30 hours of training for mediators together with only minimal mentoring and evaluation). The Florida Court System has also established standards for mediators (PDF) providing services in programs under its purview. Meanwhile, private companies such as Mediate.com have taken steps to establish their own credentialing system, or, like the Association for Conflict Resolution, are weighing credentialing or certification for their members. Arguments in favor of credentialing run the gamut, from the paternalistic (quality assurance protects the consumer) to the pragmatic (professionalization improves the ability of mediators to compete in the marketplace; credentialing will increase mediators’ professional credibility).

As more people enter the profession, and as more consumers use ADR services, market forces and the pressures within and outside our profession push us, reluctantly perhaps, but inexorably, toward professionalization.

Do continue reading Diane's post here; it's important, maybe even critical reading.

Here's my two sense (in bullet points so as not to bore you with prose).

• some of the most important mediations -- small claims matters and civil harassment disputes -- are being conducted at the bottom of the profession by law students and the barely trained
  • why are these "small" or "emotional" matters so important? 
    • in civil harassment disputes, people's lives are often at stake;
    • small claims matters may be the only contact "ordinary" citizens have with the "justice system," a system that depends upon an educated and sympathetic citizenry to support and fund;
    • considerable harm could flow both to individuals and to the institution of justice itself as the Courts divert greater numbers of people away from formal and public court proceedings into private, informal, unsupervised proceedings with people who are spottily trained not only in conflict resolution, but also in the alternative to ADR -- one's day in Court.
• the justice system which not only sanctions but promotes court-annexed mediation is lending its imprimatur to an alternative that can and too often is abusive, coercive, biased, secretive and unpatrolled
• the lack of "best practices" diminishes the respect people have for the mediation process, both the lawyers who are "referred" to it by judges ("ordered" by any other name) and those lawyers' clients who do not understand why they are being shuttled away from their day in court into a conference room with mediators who may or may not be qualified to render passing-grade services, let alone excellent ones.
• educational, training, and supervision requirements have not stifled innovation in that other secretive and unsupervised professional activity -- psychotherapy.  The potential for abuse in that relationship is even higher than the potential for harm caused by barely schooled and never supervised mediators.  Nevertheless, the potential for abuse to litigants, particularly unrepersented litigants in small claims and civil harassment actions is high.
• one day, someone will be murdered by an enraged spouse, family member or next door neighbor who mediated their civil harassment case to an agreement rather than a restraining order.  I hate to say this but think it inevitable.  It will not be mediation's fault.  But mediation will pay if it has not established standards for court-annexed mediators, standards that include mentoring and supervision in the early days of one's mediation practice in court programs. 

Those are my thoughts.  Diane's post contains many more, together with some great links to the thoughts of others on both sides of the debate.  Don't miss it.

Some people are so dangerous and some situations so volatile that restraining orders are of little use.  Consider this tragic tale of the courthouse shooting of a woman who had "secured restraining orders that prohibited [her former husband] from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited [him] from being 'within 100 yeards of any firearm' while in the presence of [his ex-wife] Eileen and [the couple's] children."  Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.  Here's the appellate court's summary of the facts:

Eileen and Harry separated in October 1993. Harry failed to comply with orders of the family court relating to spousal and child support, and Eileen sought redress in the family court on various occasions. Harry became verbally abusive toward Eileen. On at least three occasions prior to September 1, 1995, Eileen informed the bailiff in one department of the family court that she feared Harry and believed he might attack or kill her in the courthouse.

On at least one prior occasion, the bailiff searched Harry for weapons before permitting him to enter the courtroom. Eileen also previously had provided the bailiff and a judge in the family court with copies of letters and telephone messages in which Harry threatened to kill her. Eileen had secured restraining orders that prohibited Harry from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited Harry from being “within 100 yards of any firearm” while in the presence of Eileen and the children.

On September 1, 1995, Eileen appeared in department 27, one of the courtrooms hearing family law matters at the Central Civil Courthouse. Eileen and Harry were directed to proceed downstairs to department 1A. As she reached the second floor of the building, Harry retrieved a loaded .38-caliber revolver that had been concealed in his clothing and shot Eileen in the chest at point-blank range. Their daughter Lisa witnessed the shooting. Eileen died soon thereafter.

Power Cannot Protect Us

In my last post I posed the question whether a Civil Harassment Restraining Order is "better" for people who are living in fear of another than a mediated agreement between those people.  From the story of Henry Zelig and his family above, you can guess my own answer.  A restraining Order cannot protect us.  If we are not dealing with a crazed maniac (in which case we need to disengage and perhaps even hide rather than summoning our stalker to court) the parties' voluntary resolution of their dispute offers much greater protection for the future.

As lawyer, mediator, and author Ken Cloke writes in Conflict Revolution,

Power contests . . . produce winners and losers, destroy important relationships, and generate a great deal of 'collateral damage.'  Power also encourages corruption in those who use it, and blind obedience, resistance, and revolt in those it is used against.  Resort to power-based solutions, therefore stimulates future disputes and makes it nearly impossible to change without experiencing major conflicts.

Cloke thinks as little of rights-based solutions to conflicts as he does power-based solutions.  He writes,

[R]ights-based processes rest on bureaucracy, operate by control, and resolut in compliance . . . Rights-based approaches encourage alienation, resulting in personal cynicism, apathy and uncaring.  Neither prevents or transcends chronic conflicts, or seeks to dismantle them at their systemic source.

(you'll notice in the Gates-Crowley dust-up that "personal cynicism, apathy and uncaring" are the best the population is doing following President Obama's appeal to a rights-based analysis of the situation, i.e., that the matter reflects racism /* more than it does temperamental outbursts)

The better way?  Cloke suggests that both power- and rights-based means of dispute resolution have given way to a better way of resolving conflicts

based on interests, using informal problem-solving, facilitation, open dialogue, collaborative negotiation, and mediation.  Interests reflect not merely what people want, but the reasons why they want it.  Interest-based processes therefore do not require winners and losers, are able to prevent, reoslve, transform, and transcend conflicts at their chronic source, support collaborative, democratic relationships, and encourage systemic change.

You may be saying not only that that is quite an order, but it is a solution only for dewy-eyed optimists who do not understand the "real world."  I can only tell you what I told my civil harassment parties as they made the decision whether to participate in mediation or not. 

"Everyone," I said, "tells me that the other side will never see reason, that the matter cannot be settled, that the parties need a ruling from a Judge and an Order they can enforce against another.  And yet every time I mediate a dispute like this -- and I mean everytime -- the parties are able to settle their differences amongst themselves by way of agreement and the result is a far more satisfactory and durable solution for everyone."

But you don't need to take my word for it.  Download the Middle and High-School Peer Mediation materials and use the process yourself.  You'll be surprised at the results and happy you did.

__________________

*/  I do not mean to diminish the role race played in this dispute, simply that a rights-based race-conscious response by the President did nothing to resolve it.  As Cloke wisely notes in his Introduction:

[E]very conflict takes place not only between individuals, but in a context, culture, and environment, surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time on history; on a stage; against a backdrop; in a setting or milieu.

Because our history of slavery and racism is so shameful a part of our history, we too often either suppress its role in conflict entirely or raise it up as the primary focus of our attention.  Neither is "correct."  Hence the circles we continue to run in whenever race is part of the context in which conflict erupts.

I'm happy to see that Obama has asked Gates and Crowley up to the White House for a beer.

Breaking a longstanding tradition of ignoring racial conflict, Obama has officially invited Cambridge police officer James Crowley and Harvard professor Henry Louis "Skip" Gates, Jr., to the White House for a beer and a bit of conversation about the incident. Obama's hope is that the debacle can morph into a "teachable moment" for everyone, and be brought to a conclusion that will allow the nation to focus once again on providing health care to all its citizens. Latest news has it that Skip has accepted the offer. We're excited to see the transcript of that chat, if it's released.

This is just what Harvard law professor Robert Mnookin, the chair of Harvard’s Program on Negotiation, recommended.

The Wall Street Journal Law Blog in Gatesgate:  Might Mediation be the Answer, noted the Boston Globe's commentary that :

Pride seems like an insurmountable obstacle sometimes. On one hand, you have a black man who has withstood taunts from other blacks for working with The Man and achieving success in mainstream society. On the other hand, you’ve got an officer who is sworn to uphold civil society, dealing with, in his mind, someone who is being decidedly uncivil. How do you get both sides to admit they maybe went too far?

Responds Mnookin:

I would ask each is if they would find it valuable to have an opportunity to really explain to the other person their perspective, to really make it clear what their perspective is, and as part of that, would they be willing to take in the perspective of the other. . . I certainly think there is hope that professor Gates and this officer could sit down together and have a constructive conversation where they each came to understand better the perspective of the other — and themselves.

And if you think we don't all need the lesson the friendly White House beer should provide, check out the 72 comments to the WSJ Law Blog post - discouraging indeed.

Hat tip on the Wall Street Journal Law Blog post to twitter negot8or Jeff Gordon who blogs on negotiation at LicensingHandbook.com.

It's good to step into a small claims or limited jurisdiction court from time to time to see how ordinary people's disputes are resolved, usually without counsel. 

Yesterday, as I sat in the small claims department of a local branch court, I wondered why the one-hour court trial I was observing hadn't been resolved in mediation.  Both parties to the fender-bender resulting only in property damage admitted they "hadn't been looking" when one pulled out of a parking spot and the other backed into him. 

The damages didn't require an adversarial process either.  There were quotations for repair on both sides as well as estimates of the vehicle's fair market value.  It was plain that the plaintiff had used comps that weren't truly comparable -- luxury cars vs. his own stripped down model. 

I had to leave before the Court rendered its judgment but I was pretty sure the Plaintiff wasn't going to understand why he'd lost (the result I assumed).  He spoke the language poorly and had a weak grasp of the proceedings going on about him.  It is on occasions like this that I believe mediation is better able to deliver justice than the court is if you define justice as a fair result arising from a fair procedure that all parties understand and are capable of a meaningfully engagement with. 

Before the judgment was rendered, the clerk whispered in the Judges ear that the "mediator is here; with a trainee and a law student."  He took a break to tell the (unrepresented) civil harassment parties that "there is a mediator in Court willing to help you resolve your dispute without charge."  I introduced myself briefly, along with my "assistants" as the Judge told the assembled parties that it's difficult to obtain an injunction (burden of proof:  clear and convincing evidence) but a very bad result for any defendant against whom one is granted.  The Judge did a good job, I thought, in quickly instructing the parties on the "up" and "down" sides of using the adversarial process instead of mediation, assuring them all that they could return to him for a judgment if the matters didn't settle.

These are people, not lawyers, and people's disputes rarely fail to settle when they're able to tell their story in an atmosphere of hope and safety.  When their "opponent" listens to them respectfully for the first time ever.  When they don't feel as if the police officer or court official or social service agency is listening with only half their attention.  They speak quickly to me outside the courthouse door when trying to decide whether to use my free services or have the day in court they've already paid for -- filing fees and costs of service - never a small expense for the people who find themselves here, hopeful and afraid.  They thrust their documentary evidence at me in the hallway.  If they don't get it all in right now I may not listen to them later.  They are strident or trembling; self-righteous or humble, but none of them truly believe anyone is going to actually hear and understand their predicament.  

I suggest they try to resolve the matter by way of agreement.  I assure them that I will not permit them to feel unsafe; telling them they can ask for a break the very moment they begin to feel uncomfortable.   I will follow them out of the conference room and we will talk about what is troubling them right away.  No, now is not the time to tell their entire story but that time is near.  All we have to do is take the elevator up to the next floor where the ADR office and its single meeting room are located.  I assure them again that they can come back to the Court later that day if I cannot help them resolve their dispute themselves.  They are all of the firm belief that they will be back in court.  The other side is "lying," ruthless, malicious, and will will attempt to manipulate me, the mediator. 

Mediation "will never work," they say to a person.  And yet, the woman in the black suit is beginning to seem less threatening, more approachable, more hopeful, than the Judge in the polyester robe.

O.K., they agree.  They will give it a shot.  I'm so earnest, I sometimes feel that they do it for me as much as for themselves.  That's OK, they have no reason to hope yet.  It is enough that I do.  I am undeviating in my faith that when I call upon people's higher angels, they will respond.  I take pride in every individual willing to sit at a table across from their adversary and have a conversation.  Lawyers often won't do it.  Representatives of Fortune 500 corporations demur.  Nations refuse the offer.  Yet these people, nearly defenseless, are  brave enough to sit with the enemy and will, I know, also be wise enough, honest enough, and respectful enough, to take their destiny into their own hands and make a better decision in conversation with one another than any third-party "decider" possibly could.

Tomorrow:  the mediations.

The statutory basis for Civil Harassment Injunctive relief is here, along with at least one case holding that a single act of battery that occurred in the past and does not present a credible threat of future violence does not support the issuance of a civil harassment restraining order or injunction.

Here are some resources to assist individuals who believe they are victims of civil harassment:

How to Obtain a Civil Harassment Order (prepared by UCLA)

California Courts Self-Help Center:  Civil Harassment

County of Los Angeles (Long Beach) Pamphlet on Civil Harassment Orders

Amador County Superior Court Information on Civil Harassment Orders

Santa Clara County Superior Court Information on Civil Harassment Orders

Sacramento County Superior Court Information on Civil Harassment Orders

San Francisco County Superior Court Information on Civil Harassment Orders

Shasta County Superior Court Information on Civil Harassment Orders

Marin County Superior Court Information on Civil Harassment Orders

Fresno County Superior Court Information on Civil Harassment Orders

Los Angeles County Superior Court Information on Civil Harassment Orders

WomensLaw.org Information on Restraining Orders

At the close of the year, our good friend John DeGroote at Settlement Perspectives asked whether mediators' proposals had lost their utility.  Now that parties "know the mediator's proposal is coming," he wrote,

savvy negotiators angle for an advantageous impasse rather than a settlement. Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the “neutral,” whose power to craft the mediation proposal will make her the real decisionmaker:

• In cases where the mediator’s proposal will be based on who will pay what, the parties — or worse yet, one party — will spend valuable time and effort constructing an impasse when, in the absence of a mediator’s proposal as a fallback, he might have actually achieved a compromise settlement; or

• In cases where the mediator’s proposal will be based on the value of the case, no one has an incentive to be candid with the mediator — so positions become more important than interests; or

• In cases where the parties aren’t sure what will drive the mediator’s proposal, they dig into their positions and hope for impasse — with the most likely result being a mediator’s proposal predicated on those positions.

Just yesterday, a prominent local IP litigator, trial lawyer and deal-maker Robert J. Rose of Sheldon Mak Rose & Anderson graced the IP ADR Blog with a guest post on the utility of mediators' proposals here.  As Rose notes:

A reluctant plaintiff will make a large jump if the money is really “on the table.”  Defendants will come up with money they otherwise deny having, if it means that the case is really over.  It also eliminates reactive devaluation.

For those who skipped social psychology in college, reactive devaluation is what every lawyer is taught in the first year of practice, if not earlier.  "If the other side wants it," said my first mentor, "you don't, even if it seems like a good idea to you."  With that admonition ringing in the ears of every litigator, the need for mediators is obvious.  Given the dangers cited by DeGroote, however, the mediator's proposal may now be simply another way to "game" the mediator. 

I have two short stories to illustrate the reason I re-direct the parties to bracketing when they ask me to make a mediator's proposal. But first, let me explain that I am one of those mediators who used my "proposal" option to put a number on the table I thought both parties would accept even though it would be a stretch for both of them.  I usually tested these assumptions in separate caucuses by asking each side "if they came down to $X would you come up to $Y."  When the numbers didn't overlap, I'd gauge how much pain there might be for both parties to bridge the gap, along with other entirely subjective opinions such as:

• how invested each side was in walking away with a settlement that day
• how firm each side was in their assertion that they would not go below or above a certain number
• whether either attorney needed help in bringing a little more reality to their clients before the parties would be ready to accept a proposal by the mediator; and,
• how much "street cred" I'd developed with the parties personally so that they'd accept my estimate of the settlement price-point even if they wouldn't accept their own attorney's advice /*

The first time I felt manipulated into making a mediator's proposal that wasn't the best both parties could do occurred at the close of a particularly fractious commercial mediation. In the presumed Zone of Potential Agreement , my proposal was high on the side of the Plaintiff because I felt that the defendant had more "give" than did Plaintiff's counsel. 

I made my proposal and both sides accepted.  When I walked into the defense caucus to tell counsel that he had a deal, however, I was met with a burst of laughter, the clapping of hands and the following statement:  "I was prepared to take less; that's a great deal.  Thanks so much."

Everyone Lies to the Mediator

That was the hardest lesson I'd had to date in the truism that EVERYONE lies to the mediator.  You do not get to lie to the mediator twice, however, so I caution anyone who's feeling that she put one over on the mediator either to keep it to herself or never to hire that mediator again.

Still, I took a lesson from the attorney's merriment.  I realized immediately that he was not the only, nor the first, attorney to manipulate me.   He was simply the only one to let me know it.  I don't like being manipulated.  But that's what litigators are trained to do.  We call it "persuasion."  Still, I didn't like the look of my mediator's finger prints on that settlement, one that now appeared unduly influenced by my credulity.  

So that's reason no. 1 -- an extremely strong reason no. 1 - why I don't' like to make mediator's proposals and why counsel might ask themselves whether they want to continue asking for them.

"If We'd Wanted a Third Party to Decide, We Would Have Arbitrated This Case"

The quote above is from an attorney who represented one of the parties in the largest and most sophisticated commercial case I've mediated to date. We were at the end of day two and the parties -- who had traveled great distances to meet in a neutral city -- were nowhere near a landing point.  I was a sufficiently experienced mediator to land the case, but new enough to feel as if I'd run out of options when I suggested making a mediator's proposal.  

"I didn't hire you to have a third party make my decision for me," said counsel.  "If you want to get the parties closer together, why don't you suggest a bracket?" (for a explanation of bracketing, see my colleague Ralph Williams' article Introducing Deal Points - the Basics.)

I'd used brackets as a means of testing the parties' true distance before that day ("if he went to $X would you come down to $Y?") but I'd never made a mediator's proposal that was a bracket, i.e., "I suggest that the defendant put $X on the table if plaintiff will reduce its demand to $Y."

Although we didn't settle the case that day with a bracket (it took four full months of follow-up telephone negotiations to do that) I took counsel's point to heart.  The parties don't hire me to make a decision for them.  They're much happier when they get to make the decision themselves.  Even though the parties do decide whether to accept the mediator's proposal, it hasn't come to them as the result of their own hard work.  That being the case, the agreement reached is far less durable (subject to failure based upon nit-picking deal points after the agreement has been reached in principle) and far less satisfying than one achieved without the mediator's thumb on the scale.

I decided to stop making mediators' proposals more than two years ago.  In all that time, however, I've never refused to make one.  Rather, I've suggested alternative ways of achieving resolution, at least one of more of which settled the case in every case where the parties asked for a mediator's proposal.  

I'd like to hear thoughts on these points -- manipulation and party satisfaction -- from my litigator readers as well as my mediator readers.

More mediator thoughts on mediator proposals here:  The Mediator's Proposal at Mediation Meditations.

________________

*  I say this with the following caveat:  I would never attempt to influence clients to do something other than what their attorneys advise.  From time to time, however, the attorney needs to make the mediator the "bad cop" in the negotiation so that the client will not feel as if the attorney is no longer fighting for his interests.  I only play "bad cop" with the attorney's advice and consent.  My job is to get the settlement concluded making the attorneys look good, not bad.

This just in from 11 Stone Buildings on the Resolution of Commercial Insurance and Reinsurance Disputes - A Move Towards Mediation in the London Market?

David Stern's latest bulletin on insurance and mediation is now available to download on the link above.  It aims to set out how mediation is perceived, what drivers there are for change and how these drivers are likely to impact the use of mediation as a dispute resolution technique for London Market disputes in the future.

If you would like more details of our specialist insurance mediation service, please contact Michael Couling on 020 7831 6381 or couling@11sb.com.

David would be glad to present this bulletin as an in-house seminar. Please contact Chambers if you would like further information on this or any of our forthcoming seminars.

For more information on the barristers at 11 Stone Buildings who deal with Insurance and Reinsurance please visit Insurance and Reinsurance.

To sign up for our bulletins and news alerts click on Newsletter Sign Up.

Though I mediated several big ticket London coverage cases in that fair city while defending environmental insurance claims cases (primarily against the petroleum companies my husband was then representing) the power of most settlement discussions was in the hands of the lead negotiator for Equitas - a master deal-maker who left most mediators in the dust.

I believe that the quality of mediation practice has greatly improved since that time (late 1990's, early 21st century) primarily as a result of attorneys entering the practice (with all due deference to my retired Judge mediator friends).  I'm happy to see London giving mediation a higher profile.

Does it ever serve a purpose?

One extremely good answer to the question whether an insulting first offer ever has a purpose can be found at Steve Mehta's Mediation Matters Blog Taking Escalates More than Giving.

In this example from Entourage, Terrence's insult is reciprocated by Ari in conflict escalation (as Steve predicts) and Ari's eventual victory as demonstrated by my longer post about this episode, Negotiation from a Position of Weakness, Hollywood-Style.

So much for the mediation carrot & the principle that "mediation is a voluntary process."

Foreclosure Mediation Becomes Mandatory

Program staffing, caseload expected to double

By DOUGLAS S. MALAN

A voluntary foreclosure mediation program has worked so well in the eyes of legislators that the General Assembly pushed through a measure to make the program mandatory starting July 1.

Nearly 60 percent of those participating in the voluntary program have remained in their homes, and supporters contend that even more distressed mortgage holders will benefit from being forced into mediation. To date, only about 34 percent of those eligible for mediation have made use of the voluntary program, according to the Judicial Branch.

Continue reading here.

I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.

The full Obama-Cairo Speech below:

Check out Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy.  While citing the importance of back channel communications, the author quotes "one of the nation's most experienced career diplomats and former under secretary of state"  as identifying the two "home truths" in international diplomacy:

One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.

This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators.  I ask for the full 411 on these mediations because I'm intrigued by the value $15K/day buys.  Here's the story.

My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his "team."

Your opponents just asked me to make a mediator's proposal of $X.Y million.

Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical "offer" approved by the other side in form and content that the other side could safely disown.  In either case, I felt it was (a) unethical - i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).

Someone could likely talk me down off the ledge on this one but I'm having trouble seeing it as permissible mediator behavior.   Assuming it wasn't a breach of confidence, it raises the question whose ox is being gored here?  How much manipulation by the mediator is acceptable - is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?

I have "caught" mediators in deception during my practice (and have not been quiet about my experience).  In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator.  If you lie to one of us or disclose something you shouldn't be disclosing, don't let the separate caucuses in which the mediation is taking place mislead you about the state of "play" in the litigation.  If the mediator is dishonest, will be found out.

If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.

Would any of my fellow mediate.com bloggers like to weigh in on this?  Geoff Sharp, Jeff Thompson, Phyllis Pollack, Stephanie West Allen, Nancy Hudgins, Colin Rule, Tammy Lenski, Josh Weiss, Jan Frankel Schau, Jeff Krivis, Mariam Zadeh, John DeGroote, Steve Mehta, Arnold Zeman?

 I don't know why this "screen test" for a mediation reality television program appears on YouTube but I ran across it today cruising Bing and it's pretty expressive of my passion for mediation so thought I'd share it with my readers.

This article (Relationships are Key in Job Searches) flogging this book (Whacked Again! Secrets to Getting Back in the Executive Saddle) landed in my email box from law.com this morning.

I have to say that I agree with magazine mogul Tina Brown that we're in a "gig economy" not a job economy.  What does that mean?  It means doing an inventory of your dreams right next to a realistic assessment of your skills, along with a time line for getting your own business up and running, with or without investors, remembering that in a "gig economy" barter is a perfectly acceptable alternative to cash and in the age of the internet (Networking Wisdom in Mentoring Circles) hundreds of marketing tools that can reach millions of people globally and thousands of people locally, are right beneath your fingers on the keyboard connected to the computer that brings you the most exciting set of opportunities since we decided to send men to the moon -- social networking (now there's a proper run-on sentence, the reward for which is buying myself a new copy of Elements of Style which every job-seeker and new entrepreneur should do post-haste since written communication is the key to successful online business development). 

That said, for those who NEED A JOB RIGHT NOW to pay off their law school loans (remembering that dischargable or not, we no longer have debtors' prisons), here's today's Law.com advice:

The book gives a 12-step plan for landing a new job: 1. finding passion and creating vision; 2. creating a brand; 3. creating a value proposition; 4. creating stories; 5. developing a marketing plan; 6. getting a message out; 7. creating a marketing document; 8. meeting the friend's friend; 9. power résumé; 10. preparing for an interview; 11. negotiating terms; 12. landing the job; and the next step.

The book emphasizes the importance of keeping up contacts after landing in a new job -- knowing that another may search may be ahead. But it suggests maintaining contacts by looking for ways to help other people with a "pay-it-forward" approach. "We all need help at some point," the book says. "The concept is that you are thankful for those who helped you in the past."

Villwock told the group that in his experience, the most successful CEOs and other professionals are those who are most passionate about their work. "When they stop having fun, that's when they stop and go on to the next job," he said.

He also advised the group that attitude and personal skills are as important as professional credentials. From observing executives, he said, "half their success has nothing to do with performance on the job. It has everything to do with ability to sell themselves and build trusted relationships."

If you substitute business plan for power résumé and starting the business for landing the job, you've got a perfectly great recipe for engaging the gig economy eagerly awaiting your contribution.  Listen up!  You didn't get the highest PSAT and SAT scores, graduate cum, magna or summa, ace the LSAT, study your $#@% off, learn lawyering skills, conquer your fear and pass the bar exam to be hat in hand looking to be someone's apprentice galley slave. 

Think about it and join the rest of the gig economy. 

We're looking forward to your unique and valuable contributions to the new economy right now!

The writing on the inside of the secret entrepreneurial decoder ring?  MONETIZE EVERYTHING!

AND WOMEN!!  JOIN THE PROFESSIONAL WOMEN'S NETWORK OF SOUTHERN CALIFORNIA.  WE'RE ONLINE NATIONALLY AND "ON THE GROUND" LOCALLY.

I would not ordinarily post a power point presentation that is someone else's marketing vehicle.  Nor would I generally post a power point that is meant solely for the benefit of one side of any dispute (here, plaintiffs' personal injury attorneys).  I read though the entire lengthy presentation, however, and thought it contained some good tips over a broad range of issues that could well be useful to attorneys, clients and mediators in settling personal injury litigation involving the use of structured financial products.  So with all disclaimers considered given (not my opinions; don't vouch for accuracy, etc.) I uploaded the below presentation for anyone who might find it a useful jumping off point in this complex arena (i.e., it invovles arithmetic if not actually mathematics!)

Police: Woman hit, bit court mediator

PORTSMOUTH — After a session of marital mediation in the district court's family division, Elizabeth Loveday threatened to kill her estranged mate, then hit and bit the mediator, police allege.

Loveday, of 27 Perkins Ave., Hampton, is charged with two counts of simple assault, a criminal threatening charge and a count of violating a protective order.

Police prosecutor Karl Durand said Loveday was exiting a courthouse meeting room when she shouted to her ex, "I will kill you." Shortly after, in a courthouse hallway, Loveday swung at, struck, then bit the mediator on her forearm, police allege.

For remainder of article, click here.

Hat tip to mediator Steve Mehta in my LinkedIn Network.

Mediate.com Certification Program: A Grilling of Mediate.com CEO Jim Melamed

(image from and link to last week's This American Life episode, No Map)

What do these two stories -- the first hilarious; the second infuriating -- have to do with negotiation?

First, listen to the introduction and first story in last week's brilliant episode of This American Life, No Map (podcast here).

The full chimp story (chimpanzee in red sweat-shirt, jeans and shoes causes the police to "un-arrest" his owner) is an hilarious example of a lose-lose negotiation impasse.  Lesson:  as the 12-step people caution:  "you can't save your face and your ass at the same time."  

The other, more sober tale, reveals the competing interests keeping American banks from pursuing the win-win solution that would permit "upside down" homeowners to remain in their houses and continue paying at least part of their debt.  Why?  Among other reasons, renegotiating loans secured by deeds of trust would require banks to carry a toxic assets on their balance sheets today rather than next year. 

Other impediments include the more practical road-blocks that impede efficient management of all organizations -- a lack of preparedness -- in this case, an inability to get mortgage renegotiation service centers up and running fast enough to keep up with the crisis.  We're hoping that the President's economic advisors already know this, or are still finding the time to download This American Life to their iPods or Blackberries.

Well worth a listen!

Hat tip to

for introducing us to the extremely multi-talented

.

I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication.  I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)

My advice?  Use the tried and true tit-for-tat strategy:  retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line.  The advice I gave on twitter (@vpynchon) this morning was simple and pointed:  tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.

Below, my Daily Journal article on the Dangers of Using Email During Litigation.

This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.

2001 is a  year I'd dreamed of since elementary school.  But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.  

Here are the final clips of my interview with mediator and mediation educator, Lee Jay Berman, about helping disputants ask the questions necessary to resolve their conflict and how the new American Institute of Mediation will help the experienced mediator improve his/her existing game and, just as importantly, build the business that allows him/her to practice the profession at the highest level.

Thanks, Lee Jay, for taking the time to chat with me.

And I couldn't resist on this last clip a little appreciation from Lee Jay of my work.

Here's part one of a multi-part interview with Lee Jay Berman of the new American Institute for Mediation.  Lee Jay is one of the foremost mediation trainers in the United States. 

Why bother with yet another mediation institute? 

For the same reason I spent the vast majority of time at the recent ABA Dispute Resolution conference talking to attendees rather than attending seminars. 

What we need now is not more book learnin', not further power points, not even more bullet points scratched on the Gulliver sized post-it notes favored by mediation trainers. 

What we need is more one-on-one.  More personal attention to the precise skills we need to improve, the questions we don't yet know how to ask, and the knowledge that can come only in intimate conversations with some of the best mediation practitioners and trainers in the world.

I'm lucky to live in Los Angeles.  I have snagged free time with mediators such as Ken Cloke,  Lee Jay, Jim Melamed, Woody Mosten, and others too numerous to list, asking them the precise questions the answers to which I desperately need for my mediation practice to develop to the next level.  The kind of answers Ken gives, for instance:  "behind every accusation is a cry for help."  A mediation koan I must flee the premises to fully appreciate ("please, Ken, no more wisdom; let me take this nut back to my tree, hold it up to the sun, knock it against the nearest branch, offer it to a friend for further inspection, crack its shell, taste its meat and come back next month to report on the results.")

Now is your chance to go one-on-one with the world-renowned group Lee Jay has put together at affordable prices.

Listen to Lee Jay here in the first of a series of conversations about the new American Institute for Mediation. If I couldn't get Ken Cloke's advice for the cost of a glass of carrot juice at a local Santa Monica cafe (yes, Ken is one of the world's most generous men) you can be certain I'd be flying in from wherever I was now to take his Mediating Dangerously course at AIM (June 4-6, 2009).

And, oh yes, LITIGATORS???????  Listen.  My husband's client is about to spend a cool $18K for one full day of mediation.  Should he have mediation training? Yes, he should and thanks to his service on the federal court's Settlement Officer panel, he does.  Is there anything to learn other than how to pitch your legal and factual positions to the mediator; to bluff and cajole; to start low/high in the hope that your negotiating partner doesn't know the value of his own case?  You betcha!  Come study with the best and wax the opposition in your next facilitated negotiation with a third party neutral. 

I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.

At the end of our session, I suggested to a fellow mediator that all separate caucus mediation is inherently deceptive. He is a sophisticated practitioner and knew exactly what I meant. My husband - a litigator of 35 years who is also (newly) on the District Court's Settlement Officer panel - recoiled at the idea.

Here, for your consideration, is an excerpt from a lengthy discussion of the issue from the Journal of the DuPage County Bar Association -- Defining the Ethical Limits of Acceptable Deception in Mediation by JAMS mediator the Hon. John W. Cooley (Ret.) 

[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.

These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."

Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.

Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.

New Zealand mediator Geoff Sharp blogged on this topic under the rubric "noisy disclosure" recently, noting that

Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).

See my own short post on mediator predictions and false signals here. 

 I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.

My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.

Your thoughts?

The American Arbitration Association announces a new set of dispute resolution services for businesses and consumers, including new panel members of which I am one.

Mediation and non-binding arbitration are processes that offer parties opportunities to settle their disputes. Pursuing settlement helps clients to reduce the total cost of conflict management in their organizations, provides flexibility and protects valuable relationships with partners
and customers.

The American Arbitration Association®’s (AAA) Non-Binding Dispute Resolution Services for Businesses and Consumers is a suite of settlement services and solutions that include:

• Mediation

• Non-Binding Arbitration

• Non-Binding Arbitration and Mediation Contract Clauses Guide

An important element of the suite is access to AAA staff facilitators who stand ready to aid parties in selecting the settlement options most appropriate for their needs and the circumstances at hand. To reach a facilitator, simply select the “Contact Us” option below to send an email requesting information
and assistance.

Here are the consumer procedures.  You can also find these rules on the commercial dispute resolution page here.  And here's a .pdf download of dispute resolution clauses geared toward the business and consumer dispute resolution services provided by the AAA.

Please join the Los Angeles Chapter of Mediators Beyond Borders on May 30, 2009 (.pdf) at the home of Ken Cloke and Joan Goldsmith in Santa Monica for conversation on global conflicts.  Contribute your  ideas, expertise, donations and support, in building conflict resolution capacity around the world.

May 30, 2009
2 PM ‐ 5 PM
At the home of:
Ken Cloke and Joan Goldsmith
2411 18th Street
Santa Monica, CA 90405
310‐396‐4664

Mediators Beyond Borders is a nonprofit network of volunteer mediators, arbitrators, trainers, facilitators, coaches, and experts in dialogue and similarskills. We are actively engaged in organizing projects to develop conflict resolution skills in the Middle East, Ghana, Liberia, Zimbabwe, Kenya,Nigeria, New Orleans, Colombia, Ecuador, Nepal, Yemen, Thailand, Cambodia, Kosovo, and other communities worldwide.

If you are unable to attend, please mail a tax deductible donation to Mediators Beyond Borders, a nonprofit 501 (c) (3) organization, c/o Ken Cloke and Joan Goldsmith, 2411 18th Street, Santa Monica, CA 90405.

RSVP to kenclokembb@gmail.com

This event is sponsored by MBB founding members Nan Waller Burnett, Ken Cloke, Dorit
Cypis, Joan Goldsmith, Woody and Jody Mosten, Susan Mullins, Anna Spain, Ron Supancic,
and the Los Angeles Chapter of Mediators Beyond Borders.

As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later.  I used to say, "I'm a litigator, I can rationalize anything."  As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.

Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy. 

As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it."  The good news is that those emotions are not merely competitive.  Brooks again:

Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats.  Many of our moral emotions and intuitions reflect that history.  We don't just care about our individual rights, or even the rights of other individuals.   We also care about loyalty, respect, traditions, religions.  We are all the descendents of successful cooperators.

My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence,  rationalize away the bad and privilege the good to sell our "proof" to judge or jury.

Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.

The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling.  The cases will settle with or without us.  The difference mediators make is not settlement, but  client satisfaction.  Satisfied clients are  an absolute necessity for a successful legal practice at any time.  In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.

Money is the instrument.  But justice is the issue.

_____________

1/  More about this at IP ADR later today.

Interviews with ADR giants: Mediate.com opens video archive for month of April

Posted by: Diane Levin in Cool Things on the Web, Mediation, Mediation in Practice

Mediate.com, the world’s premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April.

For description of the type of videos available, run right over to Diane Levin's blog by clicking on the title up top.

Thanks Diane for getting the word out about this.

For a taste of some of the offerings, watch this short video of Ken Cloke talking to Robert Benjamin about the evolution of conflict  over the lifetime of an individual as well as over the lifetime of a civilization.

Cloke is my mentor and his insights are just as useful to the settlement of commercial litigation than are some of the competitive negotiation skills I've learned along the way.  Check out all of Ken's videos.